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Brandon M.
Brandon M., Counselor at Law
Category: California Employment Law
Satisfied Customers: 12620
Experience:  California licensed attorney
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California based company with more than 50 employees. An Employee

Resolved Question:

California based company with more than 50 employees. An Employee (hired mid-September 2010) has some personal issues, followed by a divorce, then broke a leg. This employee went out the end of May 2011, returning for one day in June, and then out ever since. Just received another doctors note extending this employees time away until October.

Due to our business needs, we are not able to hold this position open. I know we are approaching the employees one year mark...which would then qualify under FMLA and CFRA. The doctors note is from an adult psychiatrist and we have an email from the employee stating that the last 7 months have been difficult but never said the time away is to get mental health in order.

We want to terminate immediately before this employee reaches the one year mark.

Any help would be appreciated.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Brandon M. replied 5 years ago.
Hello there:

Thank you for entrusting me with your question. I am an attorney licensed and practicing in California. It appears that this is not a situation where the employee has asked for reasonable accommodation or would be able to perform the work with reasonable accommodation---he is just unable to perform one way or another. Is that a correct assessment?
Customer: replied 5 years ago.
Yes, you are correct. If we were ask for reasonable accommodation-we would be happy to comply.

Additional Info...

Date of Birth:07-10-1971
Race: White

SInce she has been out, she showed up as a witness to an EDD Unemployment Insurance Denial hearing for another employee which kind of shocked us (because she is a good employee) as this other employee was claiming of a hostel work environment. The case was in favor of the employer.
Customer: replied 5 years ago.
Date of Hire: 09-13-2010
Expert:  Brandon M. replied 5 years ago.
Thank you for that clarification. What I am actually trying to determine is whether reasonable accommodation is standing between the employee doing her job successfully. I understand that you would offer her reasonable accommodation if it was not an undue burden and if she was capable of doing her job with reasonable accommodation, but what I am asking is if there is anythig you can reasonably do to accommodate her circumstance that would allow her to do her job that would not create an undue burden on your company. So, for example, a medical examiner or an insurance claims adjuster can do their job entirely from the employee's home and "reasonable accommodation" could include allowing the employee to work from her home; but in many other situations the employee could not do their job with any accommodation or without unreasonable accommodation. If you are not certain, just let me know.
Customer: replied 5 years ago.
Not certain.
She is an Accounts Payable Clerk, so with the amount of paperwork that flows across her desk and working with other co-workers, doing her job at home would not be possible. With her broken leg, we would accommodate her, however, she has never asked for this accommodation to come back to work...and it seems there is the mental health issue on top of this.
Customer: replied 5 years ago.
Not sure what is going on...I have now received TWO emails to view a response...and my reply is the last thing that appears...have you actually replied? If so, nothing is viewable.
Expert:  Brandon M. replied 5 years ago.
I not sure either. I was out for most of the day and I just returned. As far as I know, no further emails should have gone out since your last communication. You responded to my last question, so you did not miss anything.

California is an employment-at-will state; this means that, generally speaking, either the employer or the employee can terminate the employment relationship at most any time and for most any reason.

If I may be straightforward, you have given me no reason to believe that you can't let the employee go. She can't do her job, and all the doctors' excuses in the world can't change that. The law does not permit an employee to save their job indefinitely just because they are sick or injured, and the reason why is the employer has a job to do. The law does not protect an employee who can't do do their job without reasonable accommodation (except for the short-term situations protected under the FMLA and CFRA). You have already been extremely forgiving and generous, in my opinion. She has been employed less than a year, she cannot do her job even with reasonable accommodation, and California is an employment-at-will state.

I understand that you may have follow-up questions. Let me know if further clarification is needed. Thank you.
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