American Disabilities (ADA) & CA Fair Employment and Housing (FEHA) Leaves

Rules Governing ADA & FEHA Leaves

When employees are diagnosed with serious illnesses or injuries, they often need to take time off to seek treatment and recover. If the employee’s condition qualifies as a disability under the American Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA), then an employer may be required to provide the employee with a leave of absence as a reasonable accommodation.

A reasonable accommodation is a job modification or adjustment provided to a qualifying employee with a disability that allows the employee to perform the essential functions of her job.

An employer does not have to provide a leave of absence under the ADA if it can show that doing so would cause an “undue hardship.” However, the employer is still required to comply with other federal and state laws, such as the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), which may provide a separate entitlement to the employee for a leave absence.

California prohibits disability discrimination under the Fair Employment and Housing Act (FEHA) 

FEHA is administered by the Department of Fair Employment and Housing (DFEH). Regulations issued by the DFEH provide that a leave of absence can be a reasonable accommodation under the FEHA.

According to the FEHA regulations:

• Holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.

• When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.

• An employer is not required to provide an indefinite leave of absence as a reasonable accommodation.

There are no regulations or guidelines detailing the precise amount of leave that employers must give employees as a reasonable accommodation, and court decisions have held that each case is considered on its specific facts and circumstances.

Under the ADA and FEHA, an employer may not have to provide a leave of absence as a reasonable accommodation if it creates an “undue hardship” for the employer. The ADA and FEHA define undue hardship similarly.

Under the ADA an undue hardship is defined as a “significant difficulty or expense incurred by a covered entity,” which is measured by the following factors:

• The nature and the net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding.

• The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources.

• The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;

• The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and

• The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Employers should be cautious about terminating an employee who cannot return from FMLA or CFRA leave. If an employee has exhausted FMLA or CFRA and needs an extension, arbitrarily saying 'no' without a reasonable business explanation is not a good practice.

The employer should also offer the person with a disability an alternative accommodation, such as a transfer.

Lauren Sims is the article’s author and the Director of Human Resources.

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