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Accommodation may mean leave plus reinstatement

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training,Performance Reviews

Employees who take their 12 weeks of FMLA and California Family Rights Act (CFRA) leave don’t lose the right to reinstatement once their time off expires. In fact, additional time off may be a reasonable accommodation under both the ADA and the California Fair Employment and Housing Act (FEHA).

What’s more, that additional medical leave would have to be accompanied by the right to reinstatement, or it isn’t a reasonable accommodation under either the ADA or the FEHA.

Recent case: Charlie Dang worked for Solar Turbines and got good reviews. Then he developed “permanent left leg coldness” and “severe hemorrhoids,” which prevented him from standing or walking for long periods. Around the time he explained his predicament to management, Dang claims he became the department scapegoat for low productivity and was unfairly criticized for poor performance.

Dang became depressed and went on FMLA and CFRA leave. When he couldn’t return after his 12 weeks were up, he was placed on continued short-term disability leave. The company fired him when that leave expired.

Dang sued, alleging he had the right to get his job back under the ADA and the FEHA. Solar Turbines argued that his right to reinstatement expired when his 12 weeks of FMLA and CFRA leave expired.

The court disagreed. It concluded that continued short-term disability leave could be a reasonable accommodation for those who aren’t eligible for more FMLA leave.

Plus, according to the court, someone who receives extended disability leave as an accommodation must also have the right to reinstatement because “a leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination.” The court said the case should go to trial. (Dang v. Solar Turbines, No. 07-CV-520, SD CA, 2007)

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