Dental and Medical Counsel Blog

Disabled Employees and Leaves of Absence

December 26, 2018
Disabled Employees

Both the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) require California employers to make “reasonable accommodations” for their disabled employees. A reasonable accommodation is a job modification or adjustment provided to a qualifying employee with a disability that allows this employee to perform the essential functions of his or her job. The question becomes whether a disabled employee is able to request a leave of absence as part of a “reasonable accommodation.”

An employee is permitted to use accrued paid leave or unpaid leave as a reasonable accommodation if he or she has a qualifying disability. However, an employer is not required to compensate an employee for any leave for which the employee does not have accrued paid leave that he or she wishes to use. The employer is required to keep an employee’s job waiting for her while she is on leave, unless the employer can demonstrate that doing so would cause an undue hardship to the company. Also note that if a disabled employee is able to continue working in the workplace with a reasonable accommodation other than a leave of absence, then that employer cannot force the employee to take leave.

One challenge facing employers is in determining the length of a leave of absence. Leaves of absence, like any reasonable accommodation, must be determined on a case by case basis. There is no minimum or maximum amount of time which is automatically considered reasonable. Generally speaking, determining whether a leave of absence is reasonable, or whether it would cause an undue hardship to your practice, are questions to discuss with an experienced attorney. Given that most disabled employees would be able to take short-term leave as necessary, these issues usually only arise after the employee has been on leave for quite some time. As with any disability issue, it is always a good idea to seek legal counsel before taking any action which may negatively impact your practice in the future.

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