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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6785
Experience:  Significant experience in all areas of employment law.
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Hi .I am a dentist in california.I have 4 employees including

Resolved Question:

Hi .I am a dentist in california.I have 4 employees including the temporary employee replacing the one on disability leave.One of the employee has beeen on disability leave since may 7th and according to the last note from the doctor she willnot be back until august 6th.Can I terminate her?
Thanks
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

Termination of an injured or sick employee will only constitute a "violation of California law" if the employee was on FMLA-protected leave at the time of termination or if the employee was entitled to protection under the Americans With Disabilities Act (federal law) or the Fair Employment and Housing Act (California state law).

The Family Medical Leave Act ("FMLA") only applies to employers with 50 or more employees, so FMLA leave would not be available to an employee at your office.

Furthermore, the protections afforded to employees under the Americans With Disabilities Act ("ADA") only apply to employees with 15 or more employees and FEHA only to employers with 5 employees or more.

Even if FEHA did apply, which it would not if you only have 4 employees, an employee would only be entitled to protection under the act if his or her condition qualified as a "disability," in which case, you as the employer may be required to engage in an interactive process with the employee to determine whether "reasonable accommodations" can be arranged that will allow them to perform their job without undue hardship to your business. An employee is generally only regarded as "disabled" if his or her condition "impairs a major life function."

Again though, FEHA does not even apply if an employer only has four employees. Further, FEHA would only provide protection to an employee in this circumstance if the employee's condition qualified as a "disability," and even then, all that FEHA would require is for the employer to engage in an interactive process to see if reasonable accommodations could be made that would allow the employee to perform their job and not be fired. If reasonable accommodations could not be made, then the employee could still be fired.

All of this is to say that it would almost certainly not constitute a violation of any law for an employer in your circumstance to terminate an employee who has been absent for several weeks and is likely to be absent for several more. My explanation of the potentially applicable laws is really surplusage because these laws simply do not apply to an employee with less than 5 employees.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Customer: replied 2 years ago.

She has had hemoroid surgery and has applied for state disability benefits.Is this considered a disability.She is also advertising for her buisness ( mobile teeth whitening ) on her facebook page.


 

Expert:  Patrick, Esq. replied 2 years ago.
Kathy,

There is no set list of conditions that constitute a disability. The test is simply whether an employee's condition "impairs a major life function."

According to the most recent Supreme Court decision, this analysis requires the courts to review whether the person is able to perform the tasks of daily living (washing, brushing teeth, fixing meals, housecleaning, etc.), and decide if the person is significantly more impaired in those tasks than other persons in the population who are not “disabled.” For more information on what constitutes a qualifying disability under the ADA (for whicht he same analysis applies), visit this link: http://www.ada.gov/qandaeng.htm

As noted, an employer with less than 5 employees is not bound by any state of federal law that would restrict their ability to terminate a sick or injured employee.

Further, unless some sort of work-from-home arrangement can be entered into, it is unlikely that any accommodation of this employee's disability would be deemed "reasonable," as you presumably need this employee in your office and not having them or someone to take their place will cause harm to your business.

If you require any further clarification, please do not hesitate to ask. Otherwise, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6785
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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