As a small employer, what are our options for an employee who has been on disability for two months?

The federal Family and Medical Leave Act (FMLA) does not apply to employers with fewer than 50 employees; however, the California Family Rights Act (CFRA) covers small employers with five or more employees. The CFRA requires employers to provide up to 12 weeks of unpaid job protected leave for qualifying reasons, including for the employee’s serious health condition.

If the CFRA doesn't apply to your circumstances (e.g., employee not eligible for CFRA or has no CFRA leave available), there is an additional legal issue to consider. The California Fair Employment and Housing Act (FEHA) requires employers to reasonably accommodate an individual’s disability if the employer knows of the disability, unless the employer can demonstrate that the accommodation would impose an undue hardship.

California regulations provide a number of examples of “reasonable accommodations” under the Fair Employment and Housing Act, one of which is to provide a leave of absence when the employee cannot perform the essential functions of the job or otherwise need time away from the job for treatment or recovery. A leave of absence may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.

Although the regulations give some definition on what a reasonable accommodation is, there is no guidance on how long of a leave would be considered acceptable. This must be decided on a case-by-case basis, and several factors come into play, including, but not limited to:

• The length of time requested;
• How critical is the individual’s job;
• How large is the company; and
• How busy is the company (given seasonal issues).

Other issues to consider are any policies in your employee handbook and any past practices. If you have handled requests for time off for other employees in the past, those can be considered precedent.

It is always wise to seek counsel in making these critical decisions. The various governmental entities that evaluate these situations are increasingly sensitive, and employers should be similarly responsive.

Read more about Extended Disability Leave in the HR Library.