Question: My employee has been on medical leave for 2 months. How long do I have to provide a leave of absence?
Answer: It depends. Several state and federal laws require employers to provide leave to employees who are unable to perform the essential functions of their job due to a disability. The federal Family Medical Leave Act (FMLA) and California’s Family Rights Act (CFRA) provide eligible employees in California with the right to take up to 12 weeks of unpaid job protected leave per year to care for themselves or their family members with a serious health condition, to bond with a new child, or for certain reasons related to military service. If an employee is still disabled and unable to return to work after using all 12 weeks of FMLA and/or CFRA leave, California and federal law require employers to grant additional unpaid leave in most circumstances.
Employees are eligible for FMLA and/or CFRA leave if they have worked for their employer at least 12 months and have worked at least 1,250 hours in the 12 months prior to their leave. The federal FMLA applies to employees who work at a location where the company employs 50 or more employees within 75 miles. CFRA applies to employers with 5 or more employees. If an employee is eligible for FMLA leave, in most cases CFRA leave will run concurrently with FMLA leave, so the total FMLA/CFRA leave allotment is 12 weeks per year.
Employees returning to work after taking FMLA and/or CFRA leave are entitled to return to their same or a comparable position. If an employee is still disabled and unable to return to work after 12 weeks of CFRA and/or FMLA leave, the employee is likely eligible for additional unpaid leave. The Fair Employment and Housing Act (FEHA) requires employers of 5 or more employees to provide reasonable accommodations for disabled individuals unless it would cause an undue hardship. The Americans with Disabilities Act (ADA) imposes this requirement on employers with 15 or more employees. Providing additional leave after an employee exhausts FMLA and/or CFRA leave is a reasonable accommodation. Also, if an employee is not eligible for FMLA and/or CFRA, the employee is eligible for unpaid medical leave under the FEHA and the ADA.
Employers must engage in an interactive process when an employee requests reasonable accommodations, including a leave of absence. The California Civil Rights Department has issued a reasonable accommodation packet to assist employers with the interactive process. The packet is available here: https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2021/07/Request-For-Reasonable-Accommodation-Package_ENG.pdf
There is no defined amount of leave that an employee is entitled to under the FEHA or the ADA. Employers must provide unpaid leave as a reasonable accommodation if additional leave is likely to enable the employee to return to work, and the leave does not cause undue hardship for the employer.
Employees sometimes provide a note from a health care provider stating the employee needs to be off work for a period of time. It is recommended that the employer ask the employee to provide a medical certification instead of a health care provider’s note because the certification provides additional information about the employee’s need for leave. The CFRA medical certification is available here: https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/12/CFRA-Certification-Health-Care-Provider_ENG.pdf
Employers should exercise caution and consult counsel or human resource professionals when managing requests for medical leaves of absence.