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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1737
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Can you terminate an employee who has been with you less than

Resolved Question:

Can you terminate an employee who has been with you less than a year and is on medical leave and has exhausted all their sick time and vacation time?
Submitted: 10 months ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 10 months ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

Are you the employer or the employee?

Customer:

yes

Customer:

employer

Employment-LawExpert :

Under California law, the four laws which protect an employee who is on medical leave are the CFRA, the FMLA, PDL, the ADA, and Unruh. The CFRA and FMLA provide 12 weeks of leave, but only if the person has been working there for a year. PDL protects an employee on pregnancy leave, regardless of the time. Is this person out on pregnancy leave?

Customer:

No, she is not. She joined us last November. I had given her two performance memos. After she received the 2nd one I received a fax from Kaiser saying she is out on leave until the 20th. No explanation of the medical condition. Then on the 20th received another fax from Kaiser saying she is out until the end of the month.

Employment-LawExpert :

So how long as she now been out?

Employment-LawExpert :

or will she be out from start to finish

Customer:

It will be 4 weeks from start to finish.

Employment-LawExpert :

So, there are a few issues here. First, you can absolutely terminate her employment. However, if she states that are discriminating against her because of her disability under Unruh or the ADA, you may run into trouble.

Employment-LawExpert :

The ADA oftentimes protects a person who needs to be out for a week or two.

Employment-LawExpert :

It rarely protects someone who needs to be out more.

Employment-LawExpert :

However, it does happen depending on the facts.

Employment-LawExpert :

Have you allowed other employees to take the same type of leave without protection?

Customer:

She has already been out for 2-1/2 weeks and will now be out for 4 weeks and I don't know if I will receive another notice after that. We have had no other employees of less than one year of employment who have required leave.

Employment-LawExpert :

The best thing you can do in this instance is to send her something in writing that you cannot keep her job open due to business necessity and that if she is unable to come back to work by the next working day (give a few days to account for her getting it) then you will have to terminate her position.

Employment-LawExpert :

Thus, she cannot bring a claim for promissory estoppel or breach of covenant of good faith stating that you made a promise to her that her job would be open when she came back.

Customer:

ok thank you.

Employment-LawExpert :

Not a problem. Does this fully answer your question today?

Customer:

yes it does.

Brandon, Esq., Lawyer
Satisfied Customers: 1737
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 2 other California Employment Law Specialists are ready to help you

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