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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27887
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I own small business (4 employees including myself) here in

Customer Question

I own small business (4 employees including myself) here in Southern California. I had employee call out sick last Thrusday and then call on Friday saying threw back out. I requested a physician's statement to okay employee back to work. Employee is debating with me that I have never asked for such a statement before so why now. Tried to explain that with back injuries, work here (veterinary clinic) could aggravate the injury and the Office will not take responsibility for that. Now employee is stating the Office should pay for the examination.
What recourse can I take as an employer? 1) State that the exam is employee's financial obligation? 2) Failure to comply can result in termination? 3) Other?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning Doctor,

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

Because the employee must handle, and at times wrangle scared and emotional animals as part of their job,. and as they have specifically stated that they are out of work because thy have a back injury/malady, as the employer, you have every right to demand that before they return, that they provide a report, or note from their physician either releasing them for full time duties in your office, or providing restrictions on physical activity for a specific period of time.

As you have less than 5 employees, you are considered a small employer and the regulations of the EEOC and the CA Family Rights Act do not apply to you. Your employees are not entitled to leave for any reason, not can they file a complaint against you or sue you for discrimination.

As the employer, you have made your demand as regards XXXXX XXXXX for them to return to work, and you may maintain that position under the law.

You have no obligation to pay for a physician visit for the employee so that they can provide you with a not or report detaining their present physical abilities.

Unless the employee is using accrued sick leave or vacation at this point in time, there position in your office is not protected and their refusal to provide the requested medical clearance and their insubordination, are grounds to terminate them, or otherwise discipline them.

Your employee manual spells out the expectations and the rights of the employer, and you are within your right to enforce those policies.

At this point, you are entirely correct, and the employee is in the wrong in arguing with you about the expectations surrounding their return to work.

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.

Doug,


 


Matters of Labor Law are certainly confusing at best. I appreciate your help and your reply has been most helpful.


 


Few more questions if I may:


 


1) Is is the employee's responsibility to as for vacation time and/or sick time to be used to cover this time off or should it be automatically be used?


 


2) How long must I give the employee to comply to the request for physician's release?


 


3) Can the refusal up to this point to comply with request for physician's release (since injury was reported last Friday am) be substantial time to warrant employee's termination?


 


4) What time frame, if any, does the labor law state for employee to comply to request?

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

You asked:

1) Is is the employee's responsibility to as for vacation time and/or sick time to be used to cover this time off or should it be automatically be used? You may automatically deduct for sick leave if they have it accrued when they are out with an illness or injury. As for vacation time, if your company policy holds that vacation time may be forced when an employee is out sick and has no further sick time left, then you may do that as well. The same right is afforded larger employers who have employees go out on leave under the FMLA or the CA FRA.

 

 


 


2) How long must I give the employee to comply to the request for physician's release? You can give them as little time, or as much as you choose. If they have used their sick leave up, and because you are not required to force them to take vacation time, you could demand that the doctor's note be submitted no later than their last sick day, and after that they are subject to termination.


 


3) Can the refusal up to this point to comply with request for physician's release (since injury was reported last Friday am) be substantial time to warrant employee's termination? As the employee handbook clearly gives you the right to ask for a note---and the employee has refused unless you give in to their specific demands---that constitutes insubordination for which you may fire them and they will not be eligible for unemployment.

 

 


 


4) What time frame, if any, does the labor law state for employee to comply to request? The CA Labor Code does not set a specific response time for providing this information to employers. Again, you are a small employer---less than 5 employees---and the typical regulations don't apply to you. While the FMLA has time requirements, you are not obligated to follow them.

 

I think the overriding issue you present here is the complete insubordination of the employee---and that you never have to tolerate.

 

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

LawTalk, Attorney
Satisfied Customers: 27887
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, Doctor. It has been my pleasure to assist you and I hope than 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) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.
Customer: replied 1 year ago.
Doug,

On your answers this am, thank you, and have another question to ask.... If an employee such as this is being out right subordinate, without any other cause, can termination occur just on this matter? Does any other documentation of being a problem employee pertain? I ask since this employee up until recently has been a farily model employee.
Expert:  LawTalk replied 1 year ago.
Good morning Doctor,

Insubordination by itself is proper grounds for termination. But you have more than that, in this instance, as I stated.

By all means, document the insubordination. But if you are asking if are you required to put up with it the first or second time---document it---- and fire them on a subsequent occasion of insubordination, the answer is no. One instance is sufficient.

You don't have to have a history of problems with an employee to justify termination for refusal to follow company policy and rank insubordination.

I wish you the best in your business in 2013.

Doug
Customer: replied 1 year ago.

Doug,


 


Following up as of today, April 9, the employee in question has been terminated and dismissed from my office. I wish to thank you for your time in this matter. If the need ever arises again, I will gladly seek out your advice. You have been most helpful and it is greatly appreciated.


 


Thank you,


Jeffery Glass, DVM

Expert:  LawTalk replied 1 year ago.
Good morning,

It is my pleasure Doctor. I'm glad to hear that things have worked out for the best.

Have a great year ahead!

Doug

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