Can I Terminate an Employee Who Doesn’t Return from Medical Leave?

In California, covered employers are required to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons, such as an employee’s serious health condition. But what happens if the employee is unable to return to work after the protected leave expires? When can an employer hire someone else to fill that position?

Our firm gets this question often from employers who feel they are being “held hostage” by employees who are unable to return to work. Their business suffers from an insufficient workforce, but it will suffer more if accused of disability discrimination.

Under the Family Medical Leave Act (“FMLA”) and the California equivalent, the California Family Rights Act (“CFRA”), an employer is only required to make an offer of equivalent employment. However, the Americans with Disabilities Act (“ADA”) and workers’ compensation laws create additional obligations to “reasonably accommodate” the employee’s disability.

If an employee returns from a leave of absence with restrictions from his or her doctor, the employer must explore possible accommodations that will enable the employee to perform the essential functions of the job consistent with the doctor’s recommended limitations. In some situations, there may be more than one way to meet a medical restriction. The key is to “engage in the interactive process.”

Still, the ADA does not require an employer to ignore business realities. An employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” is defined as an action requiring significant difficulty or expense when considering several factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.

Since each situation must be evaluated on a case-by-case basis, the following are general guidelines to assist in protecting employers from potential litigation:

  1. Carefully administer FMLA leave, keeping track of relevant dates. (There may be additional requirements for pregnancy and worker’s compensation injuries).
  2. Communicate regularly with the employee while he or she is on FMLA leave (and additional leave beyond FMLA, if granted).
  3. Request documentation from the employee (or employee’s doctor) stating when the employee may return to work.
  4. Individually assess the employee’s return to work and determine whether a reasonable accommodation is available.
  5. If a reasonable accommodation is not available (including additional leave), be prepared to articulate how the continued absence significantly impacts business operations.

The important thing to remember is that the process requires “communication and good-faith exploration of possible accommodations between employers and individual employees with a known physical or mental disability with the goal of identifying an accommodation that allows the employee to perform the job effectively.” Jensen v. Wells Fargo Bank, (2000) 85 Cal. App. 4th 245, 261.

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