How Long Do You Have to Hold a Job for an Employee on Leave?
You have an employee leave of absence to deal with. That much you know. What you don't know is how long the leave will last and how long you are legally required to keep their job open.
You count on your employees to keep your business running. But life happens, and sometimes an employee needs extended time away. Absent employees, especially in key roles, carry a real cost. Actively disengaged employees alone cost the U.S. between $450 billion and $550 billion each year in lost productivity.
So how long is too long? Are there laws that set a limit? The answer is yes, and as an employer, you have more rights in this area than you might expect.
What Does a Leave of Absence Actually Mean?
A leave of absence is an extended period away from work, typically a week or more. There are two types:
1.
Mandatory leave is governed by law and covers situations like military duty, jury duty, and certain medical conditions. Employers must comply with the applicable statutes regardless of company policy.
2.
Voluntary leave, like personal days, vacation time, and similar arrangements, is not governed by law. Your company's policy governs how this works, and those policies should be clearly communicated to every employee in writing.
What Laws Govern Employee Leave?
Two federal laws set the baseline for extended leave: the FMLA and the ADA. California adds its own layer on top of both.
The FMLA (Family and Medical Leave Act)
The FMLA has been in effect since 1993. It gives eligible employees up to 12 weeks of unpaid leave per year to handle qualifying medical or family situations, including:
Birth, adoption, or bonding time (maternity leave)
Military duty or care of a service member
A serious health condition affecting the employee or an immediate family member
To qualify, an employee must have worked for the company for at least one year and logged at least 1,250 hours during that period, roughly 156 days. The FMLA only applies to employers with 50 or more employees.
Once the leave ends, you must reinstate the employee to the same position or a comparable one. Employers may request medical verification, and employees have 15 calendar days to provide it.
California employers also face obligations under the California Family Rights Act (CFRA), which applies to companies with 5 or more employees and covers a broader range of family members than the FMLA. For a detailed breakdown of how these laws interact and where the legal traps are, see our guide on Protected Leave Litigation: Defeating Interference & Retaliation Claims.
The ADA (Americans with Disabilities Act)
The ADA prohibits discrimination based on disability and requires employers to make reasonable accommodations so an employee can perform their job. That accommodation can include time off.
The ADA defines disability as:
A physical or mental condition that limits a major life activity
A history of a disability, such as cancer in remission
A physical or mental impairment that is non-transitory or minor
Companies with fewer than 15 employees are not required to accommodate under the ADA. For everyone else, the challenge is that the ADA does not specify how long leave must last. Courts typically weigh three factors:
The nature of the job
The length of time needed
How much time has been provided in comparable situations
That vagueness makes ADA-based leave one of the trickier areas to navigate. If you are unsure whether a specific situation requires accommodation, consult an employment attorney before making any decisions.
If an employee has exhausted all legally protected leave, has not returned, and your business genuinely cannot hold the position open further, you may be able to proceed with separation, but the steps you take matter enormously. Our Termination Risk Assessment guide walks through exactly what courts look for when these decisions are challenged.
What About Your Own Company Policy?
Employers can and should set their own leave policies. All leave policies should be documented in your employee policies and procedures handbook and made available to every employee.
Your policy should include:
Notification procedures employees must follow
Specific maximum lengths of leave by type
Accommodations for disabled employees
Consequences for failing to follow the procedure
If an employee does not follow your documented notification or return process, you are generally not obligated to hold their position. That said, your policy must comply with applicable law. Failing to audit it regularly is how employers end up on the wrong side of a retaliation claim. Review your leave policy every one to two years at a minimum.
How Do You Know If an Employee Is Abusing Leave?
Look for patterns. An employee taking frequent intermittent days, particularly around weekends or following disciplinary events, may warrant a closer look.
That said, approach cautiously. Before drawing conclusions, consider whether the absences might qualify for protected status under the FMLA, CFRA, or ADA. Misidentifying a protected absence as abuse is a common trigger for interference and retaliation claims.
If you believe abuse is occurring, document the pattern, consult your employment attorney, and consistently follow your written policy. Consistent enforcement is what protects you if the situation is later challenged.
The Bottom Line
You are required to hold the job for the duration specified by the applicable law: FMLA up to 12 weeks, ADA on a case-by-case basis, and California's CFRA, mirroring or expanding those protections depending on your headcount. Beyond what the law mandates, your own written company policy fills the gap.
Not sure where your obligations end, and your rights begin? DefendMyBiz exclusively defends California employers. Whether you are dealing with an active leave situation or want to get your policies in order before a problem arises, we can help.Contact us for a free consultation.
FAQs
Do I have to hold a job open indefinitely for an employee on medical leave?
What happens if the employee does not return after their leave ends?
Can I hire a temporary replacement while an employee is on protected leave?
What if the employee's leave keeps getting extended by their doctor?
Does California law require more than federal law on employee leave?
Disclaimer: The above content is for informational purposes only. This is not legal or tax advice. Laws, IRS guidance, and withholding requirements can change, and outcomes depend on specific facts. You are advised to contact a qualified attorney for any legal advice.
