It is common for employers to have fixed, rigid leave policies that apply to all employees equally without exceptions. For example, an employer policy may provide that an employee may take up to 180 days or 1 year leave of leave. At the end of that period, the employee is terminated if he doesn’t return to work. This type of policy might seem non-discriminatory, yet runs afoul of disability laws’ requirement that the employer make an “individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation.” Gelfo v Lockheed Martin Group (2006). The employer may be required to make an exception to an existing policy to accommodate an employee’s disability unless it imposes “undue hardship” on that employer’s operations. As one court stated, an employer is not insulated from liability under the ADA by treating its non disabled employees exactly the same as disabled employees…. The very purpose of disability laws is to require employers to treat disabled individuals differently in some circumstances – to allow a disabled individual to perform his job by accommodating his disability. Holly v Clairson Industries, LLC (2007).
Here is a common situation – an employee goes on medical leave in connection with a certain medical condition or a workers comp / industrial injury. The company provides up to a year of leave. Right before that year expires, the employee reports to a doctor, who says that the employee is not yet ready to return to work, and he needs extra 30-60 days to recover. The employer disregards that recommendation, claiming that their one-year policy applies to everyone, regardless of whether they are disabled or not, and terminates an employee anyway. This would be a typical violation of the requirement to make that individualized assessment of that employee’s situation and to exercise flexibility with regard to the employer’s own leave policies in order to accommodate that employee, violating both ADA and California FEHA disability laws. Illegal leave policies often lead to successful FMLA and ADA claims against employers, which result in significant settlements or awards at trial.