Often, yes. Under California’s Fair Employment and Housing Act, a finite period of leave can be a reasonable accommodation for a disabled employee, even after CFRA or FMLA leave has run out. The limit is effectiveness. Leave is required when it’s likely to let the employee return and do the job, and an employer doesn’t have to hold a position open indefinitely. Most failure-to-accommodate lawsuits over leave turn on what the employer knew about the return date and whether it asked before ending the employment.
What does the FEHA regulation say about leave?
The Civil Rights Council’s regulation answers the question directly. Under 2 CCR section 11068(c), when an employee can’t presently perform the essential functions of the job, or otherwise needs time away for treatment or recovery, holding a job open is a form of accommodation. The regulation says a leave “may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.”
The same subsection sets the outer boundary: “An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.” That sentence is the defense’s starting point in most extended-leave cases. It doesn’t decide them, because the line between a long finite leave and an indefinite one is often disputed.
Where did the finite-leave rule come from?
From Hanson v. Lucky Stores, Inc. (1999), a published Court of Appeal decision that borrowed from federal disability cases. The court summarized the federal rule this way: “a finite leave of absence has been considered to be a reasonable accommodation under the ADA, provided it is likely that following the leave the employee would be able to perform his or her duties.”
It then adopted the same rule for California: “We hold that a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” In Hanson, the employer won summary judgment, in part because the court found the undisputed evidence showed the company had tried to accommodate the employee.
The regulation later wrote that idea into the rules. Employers defending these cases tend to cite both, since the opinion applies the standard to an actual summary judgment record.
When does a leave request become “indefinite”?
When there’s no reasonable estimate of a return date, or the estimates keep moving without any medical basis for thinking the next one will hold. A doctor’s note that keeps the employee off work until further notice, with no estimate, looks indefinite. A note that gives eight more weeks and a date to reassess looks finite, even if the eight weeks may be extended later.
The harder cases are the serial extensions. An employee who has been out for months sends a fourth note pushing the return date back again. That pattern can support an argument that leave is no longer likely to be effective, but courts usually want to see that the employer asked the doctor or the employee whether a real return date existed before acting. The risk sits in ending the employment out of frustration before anyone has that conversation.
Length alone is rarely decisive. A six-month leave for a surgery with a predictable recovery may be reasonable. A shorter leave with no prognosis may not be. The question is always what the medical information showed when the employer made its decision.
Does leave have to continue after CFRA or FMLA runs out?
Not automatically, but the employer can’t stop the analysis there. CFRA and FMLA give eligible employees up to 12 weeks of protected leave in a 12-month period. The FEHA accommodation duty is separate, and it doesn’t have a fixed number of weeks. When protected leave is exhausted and the employee isn’t ready to return, the employer has to treat the next step as an accommodation question and engage in the interactive process.
A form letter that says “your leave has expired and your employment is terminated” invites a lawsuit. A letter that asks for updated medical information, an expected return date, and any restrictions, and gives the employee a reasonable time to answer, builds the record a defense needs. The firm’s post on the interactive process obligations under FEHA covers that dialogue in more depth.
| Situation | Accommodation risk | What tends to help the defense |
|---|---|---|
| Doctor gives a firm return date | Leave is likely required unless it causes undue hardship | Granting the leave and confirming the date in writing |
| Return date keeps moving | Disputed; depends on the medical basis for each extension | Written requests for prognosis before each decision |
| Open-ended note with no estimate | Indefinite leave isn’t required | Documented attempts to get an estimate, then a decision based on the answer |
| Employee can return with restrictions | Leave may not be the right accommodation at all | Exploring modified duty or another vacant position |
When is a leave extension an undue hardship?
Real difficulty or expense, judged against the employer’s size and resources. The FEHA regulations look at factors like the nature and cost of the accommodation, the employer’s overall finances, and the impact on operations. A large employer with many people in the same role will have a hard time showing that holding one job open for a few more weeks is an undue hardship. A small business that can’t fill a hard-to-staff role with a temporary hire has a much better argument.
Undue hardship is the employer’s burden to prove, and courts expect evidence, not assertions. Records of overtime costs, missed deadlines, or failed attempts to cover the position with temporary staff carry more weight than a manager’s testimony that the absence was hard on the team.
Before deciding whether to end a long medical leave
- Hold the leave file, medical notes, emails and texts with the employee, and the leave and attendance policies in effect, under a litigation hold once a dispute looks likely.
- Calendar the response date on any demand letter or CRD complaint, and check for an arbitration agreement and an EPLI policy that requires early notice.
- Identify the managers and HR staff who handled the leave, and avoid any job action that wasn’t already planned before the leave began.
- Gather each doctor’s note, each return-date estimate, and the written requests for updated information, in date order.
- Get counsel’s review of the termination or separation letter before it’s sent, and before any settlement offer.
Leave disputes often arrive alongside disability discrimination and retaliation claims. The firm’s California employment defense lawyers page describes how those claims are defended.
Questions about medical leave as an accommodation
Can we require a doctor’s note to extend leave?
Yes, within limits. An employer can ask for medical information that supports the need for continued leave and gives an expected return date. It shouldn’t demand a diagnosis or the full medical history. A narrowly worded request for the expected duration, any work restrictions, and the reason more time is needed is usually enough. The employee’s refusal to provide that information can weigh against a failure-to-accommodate claim.
Does a no-fault leave cap policy protect the employer?
Not by itself. A policy that ends employment automatically after a set number of months of leave, without considering whether a short extension would let the employee return, conflicts with the individual assessment FEHA requires. Many employers keep a cap as a trigger for review, not an automatic termination. The review, and the record it creates, is what protects the company in litigation.
Can we fill the position while the employee is on leave?
Sometimes. A temporary replacement is usually the safest route, because it keeps the job available. Filling the role permanently can be defended if holding it open would be an undue hardship, but the employer should then consider whether a comparable vacant position exists for the employee’s return. That decision should be documented at the time it’s made, with the business reasons.
What if the employee never responds to requests for information?
That silence matters. The interactive process is a two-way obligation, and an employee who doesn’t respond to reasonable requests for a return date or medical update makes it harder to prove the employer failed to accommodate. Employers should send the requests in writing, give a reasonable deadline, follow up once, and keep proof of delivery before making any decision about the job.
If a former employee says you ended their leave too soon
If your company has received a demand letter or CRD complaint claiming it should have extended a medical leave, the medical notes and the requests for return dates usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving medical leave and disability accommodation. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The regulation is California Code of Regulations, title 2, section 11068. The case is Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.