Question: One of our employees informed us that she has a disability.  We have accommodated her by providing her with a leave of absence.  Our policy provides for a finite leave of absence.  If she asks for an extension of leave, can we fire her?

Answer:  Under the California Fair Employment and Housing Act (FEHA), discrimination, harassment, and retaliation against employees with disabilities are prohibited.  The FEHA requires employers to provide reasonable accommodations for applicants and employees who, because of a qualified disability, are unable to perform the essential functions of their job, unless providing the accommodation would be an undue hardship to the employer. Employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodation to determine the essential functions of the job, whether the employee can perform them with or without reasonable accommodation, and possible accommodations.  It is important for employers to approach the interactive process on a case-by-case basis and consider different forms of reasonable accommodation for the individual, which can include a leave of absence if it is reasonably likely to allow the employee to return to work without imposing an undue hardship on the employer.

A recent case illustrates that a legitimate company policy on leaves of absence, if mistakenly applied, may expose employers to liability for disability discrimination, and that there is no “bright line” duration for medical disability leaves under the FEHA.

In Glynn v. Superior Court (2019), a pharmaceutical representative, whose job required driving to and from customer locations, was on temporary disability leave due to an eye condition that prevented him from driving safely. After receiving a notice stating that the employee was eligible for Long Term Disability (LTD), a staff member discharged the employee because she incorrectly believed the employer’s policy required termination when an employee was eligible for LTD.  It was undisputed that the employee could have returned to work in a non-driving position and that during his leave he applied for several open positions that did not require driving.  Nevertheless, he was not reassigned. The employee never applied for LTD and upon termination, immediately notified the employer of this, and that he could work in any position that did not require driving.

The employer should have responded by timely engaging in the interactive process to determine if it could accommodate the employee in another position, or continue his leave as a reasonable accommodation. Instead, nine months after termination the company acknowledged the mistake and offered to reinstate the employee with full back pay and benefits while he identified a job for which he was qualified within the company. The employee rejected the offer.

The employee sued the employer for disability discrimination.  After the trial court dismissed the disability discrimination claim, the employee appealed, and the California Court of Appeals held that even though the staff member believed that she was applying company policy correctly, the employer may still be liable for disability discrimination.

This case demonstrates that when an employee with a disability requests an accommodation, the employer should promptly engage in the interactive process and carefully evaluate reasonable accommodations.  It is prudent to have the human resources department or legal counsel review the situation before discharging a disabled employee. Helpful guidance on the interactive process and reasonable accommodation is available at https://www.dfeh.ca.gov/reasonable-accommodation/  and https://askjan.org/