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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6269
Experience:  Significant experience in all areas of employment law.
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When I am on approved vacation/family leave or sick with a

Customer Question

When I am on approved vacation/family leave or sick with a doctors note. Can I be fired if I don't do any work? Does it matter that I am an exempt employee?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello again and thank you very much for requesting me to answer your question.

Unfortunately, an employer is free to terminate an employee while he or she is on approved vacation or sick with a doctor's note. This is true because employment in the state of California is presumed "at will" absent an express agreement to the contrary (Labor Code 2922) and at will employment can be terminated at any time.

Two potentially relevant exceptions are FMLA leave and California's pregnancy disability leave.

The Family Medical Leave Act or "FMLA" is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of: (A) the birth or adoption of a child, or the placement of a child with the employee for foster care; (B) the employee’s own serious health condition which prevents him/her from working; (C) a parent, spouse or child’s serious health condition where the employee is needed to care for that family member.

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s worksite are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period. An employer cannot terminate an employee on FMLA leave in retaliation for them exercising the right to take such leave.

However, as noted above, more than a mere doctors note is required for FMLA leave--the condition for which leave is taken must be a "serious medical condition." Further, only employees of large companies (50 or more employees) are eligible.

The second potentially relevant exception is California's Pregnancy Disability Leave Law, which permits pregnant employees or employees who have just given birth up to four months of protected leave. In contrast to FMLA leave, an employee will be eligible for PDLL if their employer has just 5 employees.

I am happy to provide more information on PDLL if that is necessary, but you have not indicated that the leave you are inquiring about is pregnancy related. If it's not, then this "family leave" would not be protected under any other law, typically speaking.

So to summarize the above, an employee ordinarily gains any special protection when he or she takes approved vacation, sick leave or family leave. An employer retains absolute discretion to terminate employees on such leave pursuant to the "at will" employment doctrine. However, an employee who takes FMLA leave for a serious health condition, or "family leave" pursuant to PDLL would be protected from employer retaliation stemming from their work absence.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

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.
Patrick, Esq., Lawyer
Satisfied Customers: 6269
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

What if we have entered into a year contract that allows sick leave and FMLA and at the end of that contract I will be given a serverence. Can they wait until almost the end of the contract and then fire me even if I live up to it so they dont have to pay me the severence?

Expert:  Patrick, Esq. replied 1 year ago.
Rene,

Thank you very much for your reply. Does the contract you have entered into permit them to fire you at will? Does it state that severance "shall" be given at the end of the contract, or is it discretionary?
Customer: replied 1 year ago.
Yes, I can be fired at will. It says that the severance shall be given at the end of employment. It does not say discretionary.
Expert:  Patrick, Esq. replied 1 year ago.
Rene,

I think this would come down to a matter of contract interpretation. If a contract states that severance "shall" be given "at the end of employment," I would interpret that to mean the end of employment, regardless of when the "end" actually is. Thus, even if the employment contract was for one year, the employer "shall" give severance whenever the employment actually ends, even if the one year period never culminates.

On the other hand, if the contract clearly conditions severance on the completion of one year of employment and the employer may terminate employment prior to one year, then yes, I think that most likely they could get out of paying severance by terminating the contract prior to that year.

Please understand that I am speaking merely in hypotheticals here and the above should not be construed as "advice," simply my assessment of a hypothetical situation.

I wish you the very best moving forward.

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