Posted On: March 19, 2013 by Arkady Itkin

Total Temporary Disability and the Right to Reasonable Accommodations under ADA/FEHA

Some employers assume that just because their employee is on temporary but total disability, i.e. he is completely incapable of performing his job duties for a limited period of time, this means that the employee is not qualified to accommodations under ADA or FEHA (Fair Employment and Housing Act) and therefore can be terminated. This is often incorrect and can be basis for a wrongful termination claim.

It is well established that an employee who is temporarily disabled and who needs leave of absence to recover from his disability or medical condition may nevertheless be a qualified individual under ADA or FEHA and may be entitled to reasonable accommodations.

A reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment...if it is likely that at the end of the leave, the employee would be able to perform his or her duties. Hanson v Lucky Stores, Inc. (1999).

It is very important to note that an employer is not required to provide an open-ended leave with no assurance as to when the employee will be able to return to work. Therefore, an employee should provide his employer with at least an anticipated date of return to work to full duty or modified duty to avoid a situation where that employee can be terminated without any legal consequences to the employer.