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What Happens When You Run Out of FMLA Leave?

What Happens When You Run Out of FMLA Leave?

Employees often want to know what happens at the end of their FMLA leave if they are not ready to return to work. The answer depends on the reason for leave: if you are on leave for your own serious medical condition, your employer usually has a duty to reasonably accommodate you by granting additional leave. However, if you are taking leave to care for a family member, you may have fewer rights under the law. Read on to learn more.

Your Rights Under the FMLA/CFRA

The Family Medical Leave Act (FMLA) is the most famous medical leave act in the United States. It is a federal law, meaning it applies to workers in all 50 states. The FMLA provides job-protected, unpaid leave for qualifying reasons, including your own serious medical condition or the serious medical condition of certain specified family members.

The FMLA provides that employers with more than 50 employees within 75 miles of your worksite must provide job-protected leave to employees who (1) have been employed for more than a year as of the first day of leave and (2) worked more than 1,250 hours within the year before the first day of leave.

California's Family Rights Act (CFRA) is the state version of the FMLA. Like the federal version of the FMLA, CFRA provides job-protected, unpaid leave to employees who (1) have been employed for more than a year as of the first day of leave and (2) worked more than 1,250 hours within the year before the first day of leave.

Unlike the FMLA, CFRA applies to all employers with more than five employees. This means that CFRA covers many more employers than FMLA does. In fact, one estimate is that only half of employees work for large enough employers to be covered by the FMLA; CFRA covers all workers except for those at extremely small businesses. This means that if you work for an employer with between 5 and 50 employees, you are covered by CFRA but not by the FMLA.

Does My Employer Have to Extend My FMLA Leave?

Sometimes. Under State and federal law, your employer’s obligations don’t end with your FMLA/CFRA leave. As long as your employer has enough employees, they are also required to reasonably accommodate your medical conditions—including by providing additional unpaid leave beyond the 12 weeks required by FMLA/CFRA. Your employer must provide additional leave unless doing so creates an “undue hardship” for the employer.

Whether an extended leave would pose “undue hardship” should be evaluated on a case-by-case basis. The EEOC has issued guidance on factors to consider in whether a leave poses an undue hardship, including:

  • The length of leave requested;
  • The frequency of leave (if the requested leave is intermittent);
  • The impact on co-workers;
  • The impact on ability to serve customers/clients in a timely manner;
  • The size of the employer.

In general, you are more likely to be entitled to a shorter leave, rather than a longer one: a shorter leave usually is less disruptive to the employer and co-workers. Similarly, a larger employer should be able to accommodate additional leave more easily than a smaller employer. These are just generalizations, however, and are no substitute for advice about your specific situation.

If you are taking CFRA/FMLA leave to care for a family member, it is less likely that your employer has a duty to provide additional leave. Federal law and most State laws do not require employers to provide reasonable accommodations because of an employee’s caretaking obligations. However, there is some authority for bringing these claims even where the law does not expressly require accommodations. If this is your situation, you should speak to a knowledgeable employment attorney in your jurisdiction.

Can My Employer Fire Me at the End of My FMLA Leave?

Not usually. Under State and federal law, your employer’s obligations don’t end with your FMLA/CFRA leave. As long as your employer has enough employees, they are also required to reasonably accommodate your medical conditions—including by providing unpaid leave in addition to the 12 weeks required by FMLA/CFRA. Your employer must provide additional leave unless doing so creates an “undue hardship” for the employer.

Your employer’s obligation to accommodate you is triggered by your request for additional unpaid leave. This means that your employer is not required to be psychic; the safest course of action is to expressly ask, in writing, for additional leave.

Unfortunately, employers often think that their obligations end on the last day of FMLA/CFRA leave. They sometimes tell employees that they have “resigned” or that their position is “no longer available.” If this happens, you may have a claim for wrongful termination.

Moreover, if you are treated differently than other employees upon your return from leave, your employer may be retaliating against you for taking leave or may be discriminating against you based on your disability

What if My Position is No Longer Available at the End of My FMLA Leave?

In general, your employer has an obligation to reinstate you to the same or similar position at the end of your FMLA/CFRA leave. Sometimes, employers hire a replacement during an employee’s FMLA/CFRA leave and choose not to reinstate the employee who was on leave. This is illegal unless your employer makes available to you a substantially similar position (i.e., one that pays similarly and has similar job duties and levels of authority/responsibility).

Our Employment Lawyers Fight for California Workers

At King & Siegel LLP, we have helped hundreds of workers hold employers accountable through legal actions. If you have been denied sick leave or wrongfully terminated in violation of the paid sick leave laws, the FMLA, the CFRA, or other anti-discrimination laws, our attorneys are here to help.

Need legal help? We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. If you have experienced discrimination or your employer has wrongfully denied you sick leave, contact us today through our website or give us a call at (213) 214-3757 to schedule a free consultation.

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