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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11031
Experience:  Significant experience in all areas of employment law.
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I NEED to see a doctor and have asked to leave 15 minutes early

Customer Question

I NEED to see a doctor and have asked to leave 15 minutes early from work so I'm not extremely late to my appointment. Opting for appt on a weekend will cause me to wait month and a half to see a doctor on my day off. My employer has asked me to fill out a "Partial Day Off" form, which I was completely fine with until I read the effect it has on my employee file. Exact quote: EVEN IF THIS REQUEST IS APPROVED A DAY OR DAYS OFF WILL STILL COUNT AGAINST YOUR ABSENCES FOR THE YEAR DURING A 12 MONTH PERIOD YOUR
3rd absence or tardy will result in a verbal warning.
4th absence or tardy will result in a written warning
5th absence or tardy will result in 3 disciplinary days off.
6th day will result in possible termination."
I am wondering if this is legal?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 3 years ago.
Hello and thank you for entrusting me to answer your question. I am sorry to hear about your employer's insistence that you sign this form and appreciate your concern.

Pursuant to California's Fair Employment and Housing Act, all employers with five or more employees are required to reasonably accommodate employees suffering from any illness that impairs a major life function. This law offers rather liberal protection, especially in comparison to the Americans With Disabilities Act (the federal corollary of FEHA) and would most likely apply to your condition if it was at all severe.

Since FEHA requires employers to "reasonably accommodate" most serious health conditions, employers are generally prohibited from basing adverse employment action on a health-related absence from work unless they can demonstrate that permittng the absence would have caused the company undue hardship.

A blanket policy which mandates discipline due to health-related absences, without regard or consideration to whether such absence actually imposes a hardship on business operations, is therefore most likely illegal.

The above noted, a legal cause of action does not accrue merely as a result of this absence being "counted." Some sort of adverse employment action must actually take place in order for you to have sustained a damage for which you can pursue compensation. Speculative harm (and it is speculative at this point, because we don't know whether you'll have more absences and be disciplined as a result of this one being counted) cannot form the basis for legal action.

So, the best course of action under the circumstances is likely to go ahead and sign the form and if, at some point down the road, you are discipline or terminated as a result of exceeding your employer's absence threshold, consider taking legal action at that time pursuant to FEHA.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.

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