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Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33166
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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I have an employee out on a Drs. note for stress. He has been

Resolved Question:

I have an employee out on a Drs. note for stress. He has been out 2 weeks, just got another note for another 2 weeks. Would he be eligible for unemployment benefits if I terminate him while he is out on a Dr. note? I am in California, he is full time, commission based pay, been here just over 2 years.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Tina replied 5 years ago.
Thank you for contacting

Is the employee on FMLA leave?

Do you have at least 50 employees?

If not, do you have a policy permitting employees to take leave?

Is this a work-related medical issue?
Customer: replied 5 years ago.
Emplyee has not told me it is FMLA, all I have is a faxed form from his Dr. stateing "Please excuse him from work. May return on 8/17/2011". No reason given on second notice. First notice stated " off work due to stress and anxiety"
Less than 50 emplyees.
No writen policy regarding time off.
Emplyee has not stated it is work related.
Expert:  Tina replied 5 years ago.
The employee would not normally be eligible for FMLA leave since you have fewer than 50 employees.

The ADA would normally require that you treat the employee the same as other employees requesting leave though if he has a disability since it prohibits discrimination based on an individual's disability.

Many mental disorders are a disability under the ADA. Therefore, I would request addtional information from the employee to determine whether this is a situation that is covered by the ADA.

If so and you terminate him, he could file suit for lost wages and benefits.

If you terminate the employee while they are unable to work, they would normally not be eligible for unemployment benefits, but the employee may already be eligible for state SDI benefits, depending on their condition.

Once they recover from the condition, they could apply for unemployment benefits.

Good luck and take care.



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