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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1831
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I have an employee that has been out for 4 days now first 3

Resolved Question:

I have an employee that has been out for 4 days now first 3 days he has called in stating he is sick but called in the afternoon to let us know. All 3 days he has done this. Today is the 4th day and he not called in at all. I think he is trying to get fired to get unemployment what can we do?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

I am a licensed attorney here to help you with your question. I appreciate your patience while I respond to you. Please remember to only rate my answer when you are 100% satisfied. I strive to provide excellent service, so if there is anything else I can help you with, or if you need additional clarification, please do not hesitate to ask. If you feel the need to click either "Poor Service" or "Bad Service", PLEASE STOP and reply to me via the REPLY TO EXPERT button with the issue you have. I will be happy to continue further and do everything I can to provide you with the service you seek. If you feel that I am unable to do so, please inform me of such and I will be happy to opt out of this question so that another expert may better assist you.

Employment-LawExpert :

The short answer, is that you can fire them for job abandonment, and be able to fight the unemployment if you want to as long as you have documentation stating that they will be fired for continued absences

Employment-LawExpert :

California is an employment at will state. This means that you are allowed to fire this individual for any reason that does not violate one of their protected civil rights.

Employment-LawExpert :

To protect yourself against this type of lawsuit, the best thing you can do is document why you are firing this person and give them at least one written warning.

Customer:

even though he has not been written up for this in the past?

Employment-LawExpert :

First I should clarify as they are slightly different conversations. Are we talking about protecting yourself from litigation or from this person getting unemployment?

Customer:

Yes

Employment-LawExpert :

Unemployment?

Customer:

Correct for unemployment

Employment-LawExpert :

For them to receive unemployment, they have to prove that they were fired through no fault of their own. If there is documentation showing that excessive absences will result in termination, as long as you do not violate the FMLA, then you would be protected. The more documentation, the better.

Employment-LawExpert :

To fully protect yourself, you should give three warnings.

Employment-LawExpert :

They do not need to be written up, but they do need the ability to correct the wrong action.

Employment-LawExpert :

And they need to be put on notice that excessive absences will result in termination

Customer:

So this is going on 4 days he has not been written up. Would this be 1 write up?

Employment-LawExpert :

Correct, there has to be some written documentation if you want to fully protect yourself from having to have your unemployment insurance go up

Customer:

and if he produces a Dr note would this even count?

Employment-LawExpert :

In California, you are not allowed to fire him if he has a disability. A disability is defined as something that affects a major life function. You are also not allowed to fire him if he is on FMLA leave. Accordingly, to fully protect yourself, you would schedule a meeting to talk to the employee and present them with family medical leave paperwork if your business is covered by the act. As long as you inform the employee of the consequences of the repeated absence, you are allowed to terminate them. If they cannot show a very good reason why they could not come in, they will not receive unemployment.

Employment-LawExpert :

By getting the doctors note, you can see if they have a legitimate reason to appeal the decision

Employment-LawExpert :

Additionally, with the doctors note you can see if the absences are covered under the FMLA

Employment-LawExpert :

You just need to prove in the unemployment appeal that they had a chance to rectify the situation and continued to abandon their job

Employment-LawExpert :

Basically, if they miss a day and are not ill, you can fire them for job abandonment and they will not receive unemployment if you say they were fired for cause.

Employment-LawExpert :

If they are ill, then they can collect unless you make it very clear that they need to be coming in to save their job.

Employment-LawExpert :

Does that make sense?

Customer:

I thought job abandonment is after 3 days?

Employment-LawExpert :

Job abandonment is when an employee has no plans to return to work but fails to notify supervisors of a resignation. It may occur when an employee repeatedly fails to show up for scheduled shifts, walks away in the middle of a shift, or fails to return to work from a break. In this type of abandonment, the employee does not call or notify supervisors of plans to be absent. Because this person is notifying you, then for them to not get unemployment, you have to show that you fired them because you believed they had no intention of coming back to work. By sending them an email or other written documentation that they needed to come back to work to keep their job, you are stating that if they do not come back they will be terminated for cause.

Customer:

one last question

Employment-LawExpert :

Ask away

Customer:

How many days out does he have to have a Dr note

Employment-LawExpert :

You can request a doctors note for just 1 day of him being out. However, how you ask for it can cause you problems under the ADA. First, to fully protect yourself, you should have a sick leave or attendance policy that requires a doctor's note

Customer:

Ok this has helped so much. thank you very much.

Employment-LawExpert :

Not a problem. I hope I have provided you excellent service. Before you go, please do not forget to take the time to rate my answer as one of the top three faces as this is how I receive credit for my time with you.

Customer:

I can save this chat correct?

Employment-LawExpert :

Once you provide a positive rating it becomes part of your account and you can print it, or review it at any time.

Customer:

Thank you!

Brandon, Esq., Lawyer
Satisfied Customers: 1831
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you

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