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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1953
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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im a small business owners with 6 employees. 1 of my employees

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im a small business owners with 6 employees. 1 of my employees has been off work since June 11. Is not a workers comp case. She is my Assistant Manager. She is under doctors care. my Question is do i have to hold her position until the doctor releases her to work again? or can i replace her?

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Is this employee out on pregnancy disability leave?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

The Fair Employment and Housing Act (FEHA) contains provisions relating to pregnancy leave. These provisions cover all employers with five or more employees. It is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy.

Customer:

yes im online. and no on the pregnancy leave

Employment-LawExpert :

So, if it is pregnancy related, unfortunately, there is not a lot you can do.

Customer:

its not pregnancy

Employment-LawExpert :

So there are a few issues here.

Employment-LawExpert :

This person would not be protected for any particular amount of time under CFRA or FMLA, but they may still have a claim depending on the circumstances under FEHA if they can prove that you fired them as discrimination based on their disability.

Employment-LawExpert :

However, given the size of your business, and the amount of time they have already been out on leave, it is not likely that this would occur.

Employment-LawExpert :

Under FEHA, the best option here would be to inform this employee that if they cannot come back to work, that they are going to be terminated for business necesity.

Employment-LawExpert :

As long as you do not let other employees go out on leave for more time than this person has been out, then you will be fine.

Employment-LawExpert :

It gets tricky if this person alleges discrimination based on a disability, and shows that you allowed others to be out longer than she was.

Employment-LawExpert :

Is this the case here?

Customer:

i've only been in business for a year

Employment-LawExpert :

but have you allowed others to take extended leave longer than two months?

Customer:

I have a employee is out on maturnity leave

Employment-LawExpert :

Would the assistant manager be able to do her job with a reasonable accomodation?

Employment-LawExpert :

FEHA require an employer to provide reasonable accommodations to an employee with a disability, which could include a leave of absence. There is no specified period of time for disability leaves, but an employer generally has an “undue burden” defense. Thus, if the leave is so lengthy it would impose an undue burden on the employer, then it would not be a reasonable accommodation.

Customer:

i was told she has a pinch nerve. which caused her carple tunnel to return. She was my opening making dough and prepping the pizza dough

Employment-LawExpert :

However, in order to fully protect yourself, you would have had to have the conversation on whether or not a reasonable accommodation could allow this person to do their job. Allowing a person to work from home has been struck down by courts as not being a reasonable accomodation.

Employment-LawExpert :

It sounds like you have very good grounds to fire her without fear of a lawsuit. However, because the FEHA does protect her from discrimination based on her disability, and because it does give her the right to have an interactive discussion about a reasonable accommodation in order to do the material functions of her job, if you want to avoid any potential claim with the EEOC or DFEH, then you should give her the chance to come up with a solution to being able to do the job with a reasonable accomodation.

Employment-LawExpert :

I.e. you would send her a letter stating that due to business necessity you will have to let her go as she is no longer able to do the essential functions of the job, however, if she has a reasonable belief that she would be able to perform the essential functions of the job with accommodation, you are happy to entertain the idea.

Employment-LawExpert :

Then, in a weeks time, you would be able to fire her if a reasonable accommodation was not provided.

Employment-LawExpert :

Again, you can go ahead and fire her tomorrow, and while you will likely be fine given the size of your business and the amount of leave already taken, by giving her the ability to have the interactive discussion you will be better protecting yourself.

Employment-LawExpert :

Does that make sense?

Customer:

yes that does.

Employment-LawExpert :

Does that fully answer your question today?

Customer:

now could i hire someone to put in that position?

Employment-LawExpert :

Yes you could

Customer:

ok thank you.

Employment-LawExpert :

I am glad I could help. 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, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

you also have a nice day

Brandon, Esq. and other California Employment Law Specialists are ready to help you

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