Your company provides an employee with the maximum time of leave allotted by statute. The employee, however, is unable to return to work after the leave has expired. Because your company permitted all of the leave to which the employee was entitled and the employee is still unable to work, your company decides to terminate the employee. Under California law, your company may have violated California’s Fair Employment and Housing Act (FEHA).

Earlier this year, a California appellate court was asked to determine whether an employee who exhausted all permissible leave under the Pregnancy Disability Leave Law (PDLL) may state a cause of action under FEHA. In Sanchez v. Swissport (2013) 213 Cal.App.4th 1331, an employee was diagnosed with a high-risk pregnancy and requested and received a temporary leave of absence from her employer. Her employer provided her with 19 weeks of leave which included the maximum time of leave (four months) allotted by the PDLL. Due to the high-risk pregnancy, the employee was unable to return to work after the leave expired and, as a result, was terminated. The employee filed a wrongful termination lawsuit alleging discrimination based on pregnancy and pregnancy-related disability under FEHA. The trial court dismissed the action and, on appeal, the employer argued that the employee was permitted all of the pregnancy leave she was entitled under the PDLL, and her employment was terminated only when that leave expired and she was not able to return to work.

The appellate court disagreed with the employer and stated that an employer may commit employment discrimination in violation of FEHA in terminating a pregnant employee due to her failure to return to work even if the employer granted the employee the maximum leave provided under the PDLL. The appellate court held that disability leave required as a reasonable accommodation for a known disability under FEHA may in some circumstances exceed four months.

This decision follows a 2011 California district court ruling (Lafever v. Acosta, Inc. ND Cal, May 2011) which held that an employer, which terminated an employee suffering from lupus who was unable to return to her position after exhausting her Family and Medical Leave Act (FMLA) leave, may have been in violation of California’s FEHA. The court determined that a reasonable jury could find that the employer improperly terminated the employee rather than providing her with a reasonable accommodation (such as short-term leave) after her FMLA leave expired.

The Sanchez and Lafever decisions make it clear that, even when an employer has provided an employee with the maximum amount of required leave and even if the employee has exhausted leave under the PDLL and the FMLA, the FEHA requires employers to engage in the interactive process to determine whether there are any other reasonable accommodations (e.g., providing more leave time to the employee) available to the employee. These cases suggest that an employer may not immediately terminate an employee when the employee has exhausted his/her leave and is unable to return to work. If your company is presented with this situation, it is recommend that your company initiate the interactive process and determine whether the employee is able to return to work after an additional short-term leave, whether a modified work schedule would allow the employee to continue working, and to work with the employee around the time his/her leave was expiring to determine whether any other reasonable accommodations are available. Initiating the interactive process after the leave has expired may prevent a lawsuit down the road.