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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 28001
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Our company located in San Jose, CA and we have an employee

Customer Question

Our company located in San Jose, CA and we have an employee always missed work (7 days in 1 month!) We would like to let him go, this time when he return to work, he gave me a doctor note stated that he has Wolff-Parkinson-White Syndrome, and I asked him about this condition he told me that he had this condition before and it's not new, can I still fire him?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

How many employees does your company employ within a 75 mile radius of where this employee works?

Has the employee been with the company for at least a year, and worked a minimum of about 25 hours a week or more in the past year?

Doug
Customer: replied 1 year ago.


Q1) 29 employees in 75 miles radius


 


Q2) no he has not work with us for a year, only worked here for about 5 months

Expert:  LawTalk replied 1 year ago.
Good morning Jerry,

Thank you for the additional information.

As the employee has not been there long enough to qualify for leave under the FMLA, and because with less than 50 employees you are not subject to the FMLA, you are not obligated to hold his position when he needs time off based on the FMLA.

However, there is a good chance that his disease is serious enough that it qualifies him as disabled under the ADA regulations.

Under the ADA guidelines, a person is considered disabled if they have a physical or mental impairment that substantially limits one or more of the major life activities. Recently, some new sections were added to the ADA regulations which provide even greater protections for the employee.One such section, 1630.2(j)(1)(iii) holds that the issue of “substantially limited” in a major life activity “should not demand extensive analysis,” and goes on to hold that comparing an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population “usually will not require scientific, medical or statistical analysis.”


Presuming that his condition is serious enough to qualify him under the ADA, then he has the right to ask you, as the employer for reasonable accommodations based on his disability. Reasonable however does not mean that an employee may be out of work for long stretches of time--and missing 7 days in one month is not going to be considered reasonable either, unless it is easy for you to pick of the slack when he is out.

Because you are walking a fine line here---and the sole reason you articulate for wanting to terminate him immediately is his regular absence from the business----I would not suggest simply letting him go.

I think that you need to consider sitting down with him and explaining that you understand he has health problems and ask about accommodations he might need. But you may also make it clear that repeated absences cannot be allowed. Better yet, because of the potential volatility of this situation, you would be best served by having your corporate attorney sit down with you and discuss how you should handle this employee going forward.

Here is a link to a good article on the pitfalls in dealing with absences of employees who are presumably covered by the protections of the ADA:

http://www.meainfo.org/blog/ada-leaves-of-absence-and-reasonable-accommodation


For the time being, it would likely be a poor idea to terminate this employee based on their most recent string of absences from work though.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.


I understand what you mean but this employee has been missing work a lot before and without letting me know he had this condition nor any doctor notes, he just told me that his kid been keeping him up all night and simply very tired, can I fire him from those reason? I gave him a warning last time when he missed work and said that would be the last time and the next time when he missed work, I will fire him. Next thing I know, he missed work for 3 days straight and come back with a doctor note saying he need to rest. Just because he gave me this doctor note should not make him bullet proved does it?

Expert:  LawTalk replied 1 year ago.
Hi Jerry,

I fully understand your argument, and if I were the employer, my predilection would be to want to let the employee go as well.

The issue here is not just right and wrong. If you had a discrimination complaint filed against you with the EEOC or the DFEH, followed by a lawsuit, you---or your liability insurance company could easily be looking at defense costs of $50,000 to $100,000---even if you ultimately won the case.

Even with the past performance of this employee, and your threats of termination, if you fire him now---you are begging for him to file a formal discrimination complaint---and don't think that has not crossed his mind and is the reason for the belated disclosure of his serious medical condition.

You can effectively deal with this in the future---but you need local step-by-step legal guidance---you need voluminous documented evidence of how you have and will be dealing with this employee so as to minimize your risk of suit. Is he bullet proof---no. But he has just changed the circumstances and set you up for a fall if you take the wrong action.

Jerry, I have been handling employment discrimination litigation for 2 decades, and I know the signs which portend a bad result for an employer---and to fire this employee right now is one of those things that you do not want to do. Speck with your corporate attorney, and get some help from a Human Resources expert. Only then can you minimize your risk. Perhaps even speak with your insurer about your situation. they might have one of their attorneys consult with you free of charge based on the delicate nature of the present situation.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.

Ok, what about talking with a doctor to determine his condition is not a disability and he does not qualify for any special treatment?

Expert:  LawTalk replied 1 year ago.
Good morning,

\You can do that Jerry. But all that is going to do is potentially set up a battle of experts---his versus yours. But yes, by all means get an opinion if you can.

The threshold for disability under the ADA has recently become quite relaxed---and it is easier than ever for someone to claim a legitimate disability under ADA regulations.

Please keep in mind that until you rate me highly for my service, I will not be credited with helping you.

Thanks again.

Have a great day,

Doug
LawTalk, Attorney
Satisfied Customers: 28001
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Jerry. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10). It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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