Should an employee notify a California employer that he or she will not be able to return to work upon the expiration of Family and Medical Leave Act (FMLA)/California Family Rights Act (CFRA) leave, the employer must determine whether to grant additional leave as a reasonable accommodation of the employee's disability.
Should an employee simply fail to show up for work upon the expiration of FMLA/CFRA leave, you should not immediately terminate the employee for job abandonment.
Rather, you should contact the employee and inquire whether he or she needs additional leave and, if so, how much leave. You may require a medical certification of the employee's need for additional leave. If the employee has not exhausted his or her 12 weeks of FMLA/CFRA leave, you must give the employee 15 days to respond.
Otherwise, you must give the employee a reasonable amount of time to respond, but you should set a specific deadline. Only if the employee fails to respond to such a communication regarding need for additional leave would termination for job abandonment be warranted.
Intermittent Leave
An employee may use FMLA/CFRA leave on an intermittent basis up to the total amount of leave available, which is 480 hours per year for a full-time employee. Intermittent leave may be taken in daily increments, or in increments as small as the smallest increments you allow employees to take vacation or PTO. Common examples of the use of intermittent leave include whole- or part-day absences for therapy or treatment. Unfortunately, however, employees who qualify for intermittent leave due to chronic conditions that may flare up, such as migraine headaches or bipolar disorder, may take intermittent leave with little or no prior notice.
You may require an employee who is taking intermittent leave to transfer to an alternate position at the same pay and benefits during the period of such leave. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make reasonable efforts.
Three Good Ways to Get Sued by an Employee Who Took Leave
The following are not lawful reasons for failing to reinstate an employee returning from leave:
- You discovered during the employee's absence that you no longer needed him or her.
- You hired a temp to cover for the employee on leave, and you like the temp better.
- You did not think the employee would be returning from leave, so you replaced him or her.
Failing to return an employee from leave for one of these reasons will almost certainly result in a lawsuit.
This article is excerpted from Chapter 15 of the newly released California Employment Law: A Guide for Employers, Revised and Updated for 2022 by James J. McDonald, Jr.
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