I Was Ready To Return To Work, But My Boss Said, "Wait".

For those wanting to return to work: the fact that you’re not at 100% does not mean you can’t perform your job.

When you’re set to return from leave, but you have some restrictions, your employer must explore ways it can accommodate you so you can get your job done. You can’t be forced to stay out on leave if you can perform your essential job functions with modifications or adjustments (i.e. reasonable accommodations).

This is because your employer is under an affirmative legal obligation to accommodate your disabilities. You may be coming back from recent knee surgery and have some lingering restrictions, such as frequent breaks, no squatting or bending, no climbing stairs. An interactive discussion with you is required to explore all possible ways your employer can accommodate you.

Be careful you don’t get trapped with having just “agreed” to stay out until all of your restrictions are lifted or you’re back to 100%. You have an absolute right to 12 weeks of leave, but if you stay out longer, you may lose your right to reinstatement to your old position or an equivalent position.

You might need to push back.

When you return to work from leave and have some restrictions, it is illegal for your employer not to determine whether you can perform your essential job functions with a reasonable accommodation. So when your boss or HR says they want you at 100%, you’ll need to push back.

If your employer tries to tell you they can’t accommodate your restrictions, take a closer look. Most of the time, you’re in the best position to know whether your employer can accommodate your restrictions or whether you can do your job despite your limitations. You need to have a meaningful discussion with your employer about these issues.

Don’t let your employer get away with a blanket refusal to accommodate.

Ask them: why?

Ask them: what options have they considered?

Provide some creative solutions.

If you do find yourself needing more than 12 weeks of leave, your employer may be required to provide you with longer leave pursuant to the California Fair Employment and Housing Act (FEHA). This is because the FEHA requires employers to accommodate its employees’ disabilities. A reasonable accommodation may include extending a leave of absence. Twelve weeks of leave is an absolute right (unless you’re a “key employee”) pursuant to the California Family Rights Act. But, over 12 weeks may be required as a reasonable accommodation for your disability if it is likely to be effective in allowing you to return to work at the end of your leave (even with further reasonable accommodations) and as long as it does not create an undue hardship for your employer.

Undue hardship means that providing the accommodation would require significant difficulty or expense. If they say it can’t be done, ask the hard questions, why? Perhaps you can come up with a creative solution. This is what the law requires!

DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.