Both California employees and employers must know that an unprotected medical leave without a promise of reinstatement is not an accommodate under California disability laws. An accommodation by definition is a change or adjustment which allows disabled individuals to perform their job. A leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination. Burnett v US Air, Inc., 228 F.3d 1105, 1114-5 (9th Cir. 2000). After all, it has been expressly held that requesting an accommodation to a qualifying disability as a protected activity. Head v Glacier Northwest, Inc. (9th Cir. 2005).

All too often, employers “accommodate” an employee by allowing him to go on medical leave and then, upon return, try to get rehired by searching for open, available positions within the company at the time of his return.  In many cases, this practice unlawful, as it’s tantamount to terminating an employee and then allowing him the opportunity to apply for an open position, just like any other candidate.  On the other hand, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job,   if he or she can no longer perform the former job’s duties. Gov. Code 12926(p).

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