March 3rd, 2019
How To Handle Disability Leaves
By Kevin Rivera on June 13th, 2018
One of the main areas where I see employers botch their legal duties to their employees (and thereby potentially invite lawsuits) arises with employees who request disability leaves. There are different laws that provide for disability-related leave, such as the federal Family and Medical Leave Act (FMLA) and the analogous California Family Rights Act (CFRA) (both of which apply only to employers with 50 or more employees), as well as California’s Pregnancy Disability Leave law.
But the most common type of leave requested is disability leave under the California Fair Employment and Housing Act (FEHA). Under the FEHA, an employer with 5 or more employees has an affirmative legal duty to provide reasonable accommodation for the disability of an applicant or employee unless it can demonstrate that the accommodation would impose an undue hardship.
Providing a leave of absence may be, but is not always, an effective reasonable accommodation. Here are some quick tips to make sure you handle requests for disability leave correctly.
- Request Appropriate Documentation
I often see situations where an employee will email their supervisor to say they can’t come in because they’ve thrown out their back or they had to go to the emergency room, or for some other seemingly valid reason, the employer approves the time off, and the employee then continues asking for more and more time off without providing a doctor’s note. If an employee has exhausted all of their accrued paid sick leave or is out for more than 3 days in a row, you may request reasonable medical documentation from the employee to justify the request for leave. The employer may require documentation that contains the name and credentials of the employee’s doctor or health care provider; a statement that the employee has a physical or mental condition that limits a major life activity (meaning the employee is “disabled” under the FEHA); a description of why the employee needs a leave of absence as a reasonable accommodation; the date the need for leave began; and the anticipated duration of the leave. This information is crucial to enable you to assess whether the leave can be granted, as well as how to plan for the employee’s absence, such as to assess whether you will need to hire a temp.
- Give the Employee an Opportunity to Correct Insufficient Medical Documentation
If an employee provides a doctor’s note, but it does not contain all of the items of information above, you should explain why the documentation is insufficient and give the employee an opportunity to provide supplemental information in a timely manner from his or her doctor or health care provider. For example, if an employee provides a note that states the employee is temporarily disabled but does not state that the employee requires a leave of absence, or provides a note that says the employee needs a leave of absence but does not specify the duration of the leave, you should tell the employee why the note is insufficient and give him or her additional time to provide updated information.
- Exercise Extreme Caution If You Plan to Deny Leave
If you request medical documentation and give the employee a reasonable amount of time to provide it to you (generally about a week), and the employee fails to provide it, you have no duty to provide the requested leave. Or, if an employee has been out on leave during this time and fails to provide the documentation, you may treat the time off as unexcused absences and handle it as a disciplinary issue.
However, if the employee provides adequate medical documentation, use extreme caution if you want to deny the leave. Every situation must be judged on its particular circumstances, taking into account the employee’s position and the leave’s effect on your operations. Generally speaking, most requests for leave should be granted, as long as it is for a reasonable duration.
- Exercise Even More Caution If You Plan to Terminate The Employee
Often times, employees on leave will continue requesting more and more time off, and back it up with adequate doctors’ notes. It is not uncommon for a short two-week stress leave to turn into three months or more. As a rule of thumb, I advise clients to keep granting extensions and then at the six-month mark we can assess if providing leave is no longer feasible. However, every situation is different, and the law does not provide any specific amount of time that is per se reasonable or unreasonable. There are cases where employers have been liable for disability discrimination even after providing over one year of leave. Involve employment law counsel if you believe you can no longer accommodate a leave of absence and must terminate the employee on leave.
- Document Everything!
Disability discrimination is the most litigated discrimination claim in California and across the country, surpassing claims based on race, sex and age. Therefore you want to make sure you document everything because if this turns into a lawsuit later, you will need evidence to establish you’ve done everything correctly. Save copies of all letters, emails and doctor’s notes that discuss the employee’s leave. And do not put any of this in the employee’s personnel file! All of this should go in a confidential medical file for the employee that is separate from the personnel file.
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