California regulations provide that holding a job open for an employee on a leave of absence or extending a leave beyond CFRA, FMLA, other leave laws or an employer's own leave plan may be a reasonable accommodation provided that the leave will likely be effective in allowing the employee to return to work at the end of the leave and it doesn't create an undue hardship. However, an employer isn't required to provide an indefinite leave of absence as a reasonable accommodation.1

Similarly, federal courts have long held that a leave of absence for medical treatment may be a reasonable accommodation under the ADA but that open-ended indefinite leaves of absence aren't reasonable. 2

If an employee runs out of leave under the CFRA, FMLA or other leave and indicates that they need additional time off before returning to work, employers should consider extending the employees leave as a reasonable accommodation within the context of the interactive process. There is no definitive length of time off you are required to provide for disability leave. Each situation is unique and depends on the employee's circumstances, the job's essential functions and the accommodation requested.

However, keep in mind that an employer doesn't need to provide leave if it can provide an effective accommodation that allows the person to keep working or show that granting additional leave would cause an undue hardship. Employers should discuss alternative accommodations during the interactive process.

Whether an accommodation request would cause an undue hardship is a fact specific inquiry for each employer. It is a hard legal standard to meet so employers should consult with legal counsel before determining that an accommodation would be an undue hardship. For more information, see Undue Hardship.

Additionally, if an employee can perform work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.3

• Employers should be cautious and consult with legal counsel before denying an extended leave of absence as a reasonable accommodation.

Employer attendance and leave policies must also take accommodation obligations into account. For example, employers with blanket policies regarding unpaid leave that don't assess employee needs individually are inconsistent with ADA and FEHA and may run afoul of their obligations to reasonably accommodate an employee with disabilities. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must provide the employee with the additional leave even if the employer has a “no-fault” policy, under which employees are automatically terminated after they're on a leave for a certain period of time.

Additionally, strict employee return-to-work rules, for example, blanket return to work rules that require the employee to be 100 percent healed before returning to work have been found to be unlawful.

Generally, when an employee returns to work after a disability leave, you must reinstate the employee to the job that person held before leave. You can also require that the employee obtain a release from that individual's health care provider clearing a return to work — but only require a release if you uniformly require releases from other employees returning to work after illness, injury or disability, or maintain a policy of doing so.

• Certification of Health Care Provider for Employee Return to Work

If the employee can no longer perform the job's essential functions, reasonable accommodation might include transfer to a different job or schedule. Simply because the employee is able to return to work doesn't relieve you from your ongoing reasonable accommodation obligations if the employee has such need.

1. 2 CCR sec. 11068(c)