It’s risky to automatically terminate an employee who has exhausted their protected leave, that’s what you can take away from a recent case from a California district court. An employee suffering from lupus was placed on leave under the federal Family and Medical Leave Act (FMLA) and was out for 12 weeks. Since she was unable to return to her position following the end of her FMLA leave, her employer terminated her without exploring any further accommodation options. That may have been a violation of California’s Fair Employment and Housing Act (FEHA) according to the court.
Even when an employee has exhausted leave under the FMLA, the FEHA still requires that employers engage in the interactive process with the employee to determine if there are any reasonable accommodations that could be made to allow them to continue working. Among the accommodation options is providing a further leave of absence, which may give the employee more time to recuperate and eventually return to work. The employee will now present her case to a jury (Lafever v. Acosta, Inc., ND Cal, May 2011).
Tips: Having a rigid termination policy following exhaustion of FMLA could get you in trouble under the FEHA or the federal Americans with Disabilities Act (ADA) if an employee missed work due to their own illness. Be sure to evaluate each case individually and examine whether you have an obligation to engage in the interactive process under the FEHA or ADA before you terminate an employee who can’t return from leave.
