Time Off From Work Beyond FMLA Leave

Posted on April 17, 2021 | By Omid Nosrati | Employment Law,FMLA

Sometimes, employees need to take their full 12-weeks of FMLA leave to deal with a serious health condition.  What happens when the employee is unable to return to work at the end of their 12-week leave period?  Can the employer simply terminate the employee?  What if the employee could return after some additional leave that is not for an indefinite period? Can the employer terminate the employee anyway?  Most likely, if the employee is terminated in these situations, it would be a wrongful termination.

Some employers are under the false impression that if an employee can’t return to work after their FMLA leave expires, then they can be terminated.  However, California employment law is very clear that if the employee is suffering from a medial condition or disability, they would be entitled to additional leave beyond the 12-weeks provided under FMLA, so long as it would not create an undue hardship on the employer.

Once an employer knows of the disability, the employer has a duty to provide reasonable accommodations.  Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.

So imagine that an employee is near the end of their 12-week FMLA period and they present a doctor’s note to their employer saying they need additional time off and could return after 1 more month.  It would probably be unlawful for the employer to terminate the employee if the position still exists and it would not cause an undue hardship to hold the position open for that extra month.

If you believe you were denied a reasonable accommodation or unfairly terminated after taking FMLA leave, feel free to contact Nosratilaw, A Professional Law Corporation at 310-553-5630 for a free case evaluation.