How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask socrateaser Your Own Question
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38129
Experience:  Retired (mostly)
10097515
Type Your California Employment Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

have an employee coming back from worker comp disability.

This answer was rated:

have an employee coming back from worker comp disability. we have no job for her. I know that FMLA overlaps in this, however we cannot provide her with a job as we have filled her position with someone from within the company. Can we terminate her?
Hello,

Your question was posted in the California Employment Law category. However, the question states that the "State/Country relating to question:" is "Bermudez."

Can you please confirm in which state and/or nation, the employee actually performs her work duties?

Thanks in advance.
Customer: replied 3 years ago.

California- USA

We have an employee coming back from worker comp disability. we have no job for her. I know that FMLA overlaps in this, however we cannot provide her with a job as we have fille her position with someone from within the company. Can we terminate her?

A: If the employee is covered by FMLA (or CFRA -- California Family Rights Act) benefits, because she requested those benefits as part of her disability, then you cannot terminate the employee. You must return her to her job, and if necessary, you will have to terminate the employee with whom you replaced the injured worker.

If you do not, then the injured employee can sue you for violation of the FMLA/CFRA, and obtain lost wages until she obtains new employment.

Moreover, if you terminate the employee with whom you replaced the injured employee, then that employee may have a lawsuit against you for misrepresenting the availability of the job. This lawsuit is less likely than the one that the injured employee could file -- but, it's possible.

Ideally, you want to maintain both employees' employment. Otherwise, you have a risk of legal action against your organization.

Hope this helps.
Customer: replied 3 years ago.

Thank you it is something that I expected but needed some confirmation on.

You're welcome, and good luck.
socrateaser and other California Employment Law Specialists are ready to help you