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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 31974
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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An hourly employee had an injury off site and wasnt able to

Resolved Question:

An hourly employee had an injury off site and wasn't able to tell employer when they would be able to come back to job. Injured employee was not able to fulfill job requirements and was let go. They are now filling for unemployment saying "they were laid off", can employer dispute this claim?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.
Hello and welcome,

You are the employer? Was the employee eligible for FMLA leave?

Customer: replied 2 years ago.
Yes, I am the employer. Not sure about FMLA leave? Hourly employee was just at a year of employment, and broke arm and could not drive, type etc. Does that answer the question.
Expert:  Tina replied 2 years ago.
Thank you for the additional information.

If the employee worked at least 1,250 hours during their year of employment and you have at least 50 employees, then they would normally be eligible for up to 12 weeks of unpaid leave and that should have been provided to the employee. So there is a risk that they could allege wrongful termination in violation of the FMLA if that is the case.

As to the issue of unemployment, the employee would typically file for disability benefits through the state for the period they are unable to work. Once they are released to work by their physician, then they could normally apply for unemployment benefits and likely obtain them through your account.

If the employee remains unable to work, then that would normally represent a basis to challenge their right to benefits, and I would contest their eligibility on that basis, indicating that the employee was released from work because they were unable to perform the tasks of their job and they were not simply laid off.

Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction.

Thank you and all the best to you,

Tina

If you experience technical problems, please let me know or contact support@justanswer.com

Customer: replied 2 years ago.
One more question: There are only 3 employees at company, does that make a difference?
Expert:  Tina replied 2 years ago.
Yes, that makes them ineligible for FMLA leave, so that would not typically be an issue. My answer with regard to unemployment benefits would normally be unaffected by that fact though.

Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction.

Thank you and all the best to you,

Tina

If you experience technical problems, please let me know or contact support@justanswer.com

Customer: replied 2 years ago.
So, they can receive unemployment benefits, even though they were unable to perform the tasks of their job?
Expert:  Tina replied 2 years ago.
Yes, they can receive benefits once they are released to work typically. That provides employers with an incentive to hire the employee back or permit them to take leave time until they are able to return to work. I'm sorry. I realize that is probably not what you wanted to hear, but that would typically be the result in such cases.

Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction.

Thank you and all the best to you,

Tina

If you experience technical problems, please let me know or contact support@justanswer.com

Tina, Attorney
Satisfied Customers: 31974
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
Tina and 2 other California Employment Law Specialists are ready to help you

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