Skip to main content

I am on a Leave of Absence which runs concurrent with our FMLA. I broke my foot and the company says that I cannot go on contd

Hayward, CA |
Attorney answers 3


FMLA and the CA close equivalent the CFRA provide you with 12 weeks of leave. Once that 12 weeks concludes, you still have certain rights to leave under the Fair Employment and Housing Act that need to be considered. Under that law, your employer is required to engage in an interactive process to see what can be done to accommodate your temporarily disabling condition. One way an employer can reasonably accommodate an employee with an injury like yours is to grant additional finite leave to allow you to complete your healing and rehabilitation. The employer is required to do that if it will not create and undue hardship on the employer.

It is important that when your doctor provides a status update on your condition that there be an estimated return to work date. It might be two or three months down the road, and it may get extended further at that point, but there needs to be a return to work date that is not so far out as to render the leave to be an undue hardship.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.



I could not finish my question because the system cut me off: Could I get disability after I started a Leave of Absence and got injured after 2 weeks of Leave of absence?


Your initial post and the follow-up you provided after Mr. Pedersen's response need some clarification. What kind of disability are you asking about? There is California State Disability Insurance (SDI), Social Security Disability Insurance, workers' compensation temporary or permanent disability – which could be total or partial, short-term or long-term disability under an employer-provided insurance plan, or your own insurance plan.

FMLA is federal law, and the California Family Rights Act (CFRA) is a California law. Both allow an employee with a serious medical condition a leave of absence from work, after which the employer must return the employee to the same or substantially similar job. The amount of leave must be 12 weeks or less, and can be taken intermittently in any increment, even as small as one hour, as long as the total does not exceed 12 weeks. Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA):

If you are on FMLA and your medical status changes so that you now qualify for something other than, or in addition to, FMLA, there is no logical reason you cannot pursue whatever other options you have. Still, without knowing more details, it's impossible to discuss your situation.

@MikaSpencer * * * * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.


The employer is most likely incorrect. Besides FMLA/LOA, you might be also entitled to additional leave as a reasonable accommodation to your injury/disability and possibly other accommodations. It is important to bring this to your employer's attention before they take action against you, such as terminating you, as that would be in violations of disability laws.


Arkady Itkin
San Francisco Employment Lawyer