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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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can I fire an employee who left because she had a family emergency?

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can I fire an employee who left because she had a family emergency? Her cousin was taken to the hospital? This happened earlier this week to. putting a burden for coverage Last minute
The federal Family and Medical Leave Act FMLA) and the California Family Rights Act (CFRA) each apply only to employees, spouses, children and parents 2 CCR § 7297.3(e). A cousin is not covered by the Act -- therefore, an employer is not prohibited from terminating an employee who leaves work to care for a cousin.

Note: If the cousin is a "servicemember" (military), then it is possible that the person may be covered under the FMLA -- so, you may want to check with the employee to see if this is the case.

Hope this helps.

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Customer: replied 5 years ago.
I just want to make sure. I know the employee will try to collect unemployment benefits. Is this a good cause for termination leaving because her cousin was in the hospital and not attempting to help with coverage putting the staff in a tuff situation, right?

To determine whether the claimant's absence evinces a willful disregard of the employer's interests, the following questions need to be answered:

 

Did the claimant have permission to be absent? If not,

  • Was there a compelling reason for the absence?
  • Was the absence an isolated instance?
  • Were there prior warnings or reprimands for unexcused absences or other infractions?

Caring for a cousin may be a compelling reason for the absence, depending upon the relationship of the family members. However, if you were to inform the employee that he/she must return to work immediately, or she will be terminated, then that would probably be sufficient to create good cause for termination that would disqualify the employee from receiving unemployment benefits.

Hope this helps.
Customer: replied 5 years ago.
On Tuesday 11/2/11 the employee called me to notify me that she was not coming in because she was at the hospital with her cousin and aunt. She was the only one that was able to translate and that since she was the only niece able to go. I told her that if she was there what can I do. Again, short notice she called me at about 11:30am and her clock in time is at 2pm. That same day the person stationed to leave at 3pm called to tell me her daughter was sick and she needed to leave (another employee), she did stay to finish her shift. The employee that I am talking about, I did talk to her and told her that I understand that we encounter emergencies from time to time related to family (immediate family) but a cousin is not an immediate family member. Today when she called me to tell me she was leaving because of her cousins emergency. She bluntly told me she was leaving whether I excused her or not. Hung up the phone and left. Another employee called me and said to me who was going to cover the front? when she confronted the employee with the emergency she said I don't know and just left,
Based upon what you're describing, if I were the administrative law judge, I would probably rule that the employee may have had good cause on the first absence, but without permission from the employer, the second absence was not an emergency of the sort that required her presence, and that by her telling the employer that she was leaving, regardless of any permission granted by the employer, she effectively quit her job without good cause. Therefore, the I would deny UI benefits to the employee.

Hope this helps.
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