If you have been out on leave from work because of a disability or health issue, and you need additional time for treatment or recovery before you can return to work, your employer is required to grant you additional leave time unless it would cause “undue hardship.” If your employer fails to grant the leave request or to engage in an interactive process to determine whether additional leave or another accommodation is available, you may be entitled to damages under the American’s with Disabilities Act (“ADA”) and other laws.
Often, when it becomes necessary to take time off for surgery, because of an injury, or for treatment of a medical condition, it isn’t possible for you or your doctor to know the precise date you will be ready to return to work. For this reason, the ADA requires employers to provide employees with additional leave time as a reasonable accommodation when necessary.
For example, if you originally expect to be out of work for three months, but your doctor later determines that you will need to take an additional, fourth month off from work to recover after surgery, your employer is required to grant the additional leave unless the employer can show that providing the additional month off would be an “undue hardship.” Undue hardship means that providing the accommodation would create significant difficulty or expense for the employer. In other words, unless the employer can show that granting the additional month of leave would significantly impact its business, it must grant the additional leave.
Some employers have policies that provide employees a certain amount of leave beyond which the employee may lose his or her job, sometimes called a “no-fault” policy. While these policies are common, they cannot shield an employer from liability for failing to grant additional leave as a reasonable accommodation beyond that provided by the policy. Thus, if for example, your employer’s policy provides for up to 8 months of medical leave, but your doctor determines that you will need 10 months off before returning to work, the employer is required to modify its policy to accommodate your disability unless doing so would be an undue hardship.
If you are terminated while out on medical or disability leave or your employer refuses to engage in a good faith discussion with you to determine whether a request for accommodation can be made (called the “interactive process”), you should contact an Irvine CA employment lawyer immediately. You may be entitled substantial damages including lost wages and benefits, damages for emotional distress and attorney’s fees.
Thanks to our friend and blog author, Corbett H. Williams of the Law Offices of Corbett H. Williams, for his insight into employment law practice.
