Is Forcing A Disabled Employee To Be On Medical Leave Legal?

forcing a disabled employee to be on medical leaveIt’s not uncommon for employers to place a disabled employee on unpaid medical leave, even though that employee can perform all or most of his job duties with accommodation. An employer can have to major motivations for doing this –  (a) hiring a (temporary) replacement who is healthy and who will be more efficient at performing the job; and (b) avoiding a higher risk of having a disabled employee injured further, filing (additional) workers comp claims, etc.

However, under California law, when an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. Cal. Code Regs., tit. 2, § 11068, subd. (c). In other words, the law protects those disabled workers who are able to work at their job with accommodations from being forced to be placed on leave and not getting paid. This is an important protection for those workers who are being pushed out to be on unpaid leave, even though they are able to work if their relatively moderate limitations can be accommodated.

Here is a typical example: a warehouse worker injures his back while moving a load. He goes on medical leave for a few days and then returns back to work with the following restrictions: no lifting more than 50 lbs and taking 10 min sitting breaks every two hours. Even though the (large company) employer can easily accommodate these restrictions, because there is no huge rush on moving load in their warehouse, they tell the employee to go home and continue being on leave until he is 100% healthy. Forcing a disabled employee to be on medical leave in this type of situation would likely be a classic example of unlawful disability discrimination.