We have more than one employee who have requested extensions of their family leave (for various reasons). Do we have to grant these extensions, or can we terminate their employment?
This question comes up frequently, and the Labor Law Corner has addressed it a couple of times. The answer is — it depends.
The issues involved are very serious, and employers should work hard to accommodate the requests. It is much easier to accommodate an employee’s request for more time versus defending a lawsuit based on denial of such a request.
‘Reasonable Accommodation’
The Equal Employment Opportunity Commission (EEOC) has in recent years issued guidelines stating that an extension of federal Family and Medical Leave Act (FMLA) is one of the “reasonable accommodations” contemplated under the Americans with Disabilities Act (ADA).
The next question Helpline callers ask is “how much time?” This is not an easy one to answer because the ADA does not define precisely what is a reasonable accommodation.
The various government entities that address questions such as this don’t want employers to have a “knee jerk” reaction to deadlines, severing the employment relationship the moment an extension is requested.
Time Requested
So what are employers supposed to do? Several factors should be considered when making this determination, and key is what the medical provider certifies as a necessary extension of time.
How much more time is being requested? Most companies with 50 or more employees (the minimum size for the FMLA to apply) likely can accommodate a few days, or even a week or two.
But the California Family Rights Act (CFRA) was expanded in 2021 to apply to employers with five or more employees. If an employee is taking leave for their own serious health condition, and the employer is smaller, an extension of time can be more difficult to accommodate.
If an employee is requesting several more months, matters get even more complicated. What’s reasonable for an employer with 800 employees might not be reasonable for a company of 52 employees, much less for a business with eight employees. Therefore, the size of the company is yet another factor, and human resource departments struggle with how to proceed.
Other Considerations
Another consideration is how sensitive the employee’s job is. Is it easy to shuffle her/his job duties to others or are the responsibilities such that a prolonged absence is causing strain on the company?
In addition, some companies are seasonal in nature, and an employee’s absence during a busy time of the year might be difficult to accommodate. For example, think of an accounting business during tax season.
What is critical for an employer is not to have that knee-jerk reaction to a request for extending a leave.
Interactive Dialogue
The employer should enter into an interactive dialogue with the employee when responding to a request for an extension of time. A good faith effort to accommodate employees, even if ultimately unsuccessful, can be a critical defense to a claim of discrimination.
When in doubt, it is always advisable to seek an opinion from legal counsel. If the employer has worked with the employee at resolving these problems but is unsuccessful, it might be time for termination.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
