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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Can an employer say No If an employee asks to go home because

Resolved Question:

Can an employer say No If an employee asks to go home because they are not feeling well
Submitted: 10 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 10 months ago.
Good afternoon and thank you for entrusting me to answer your question. I will do everything I can to assist you.

Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will," meaning an employer is free to terminate employees for any reason whatsoever, even a reason that is perceived by the employee to be unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

The only potential legal issue in terminating or otherwise disciplining an "at will" employee who goes home without permission because they aren't feeling well would relate to the protections afforded to "disabled" employees under the Fair Employment & Housing Act.

Pursuant to FEHA, employers are obligated to "reasonably accommodate" any employee suffering from a physical condition that "limits a major life function." If the employee had a compelling health-related reason to miss work, and unless leaving imposed a substantial hardship on the business, the employee could at least argue a failure to reasonably accommodate and thus a violation of their rights under the Act.

Fortunately, employers are entitled to request a doctor's verification of an employee illness. If the employee can't provide or refuses to provide such verification, the employer can assume that the condition for which the employee left work either did not exist or was not serious, and in either instance, FEHA would not apply.

Accordingly, the best thing for an employer to do in this circumstance is demand that the employee provide medical verification of the health condition for which they missed work. If the employee can't provide it, then an employer in this circumstance would typically be free to terminate employment pursuant to the "at will" doctrine." If the employee can provide a doctor's note and the absence did not cause undue hardship on the business, the employer would be wise not to terminate under these circumstances, as to do so arguably constitutes a violation of 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.
Customer: replied 10 months ago.

Thanks for responding to my question. There is no contact with this employee so I am confident with that At Will status. The employee did not specify any issue that caused them not to feel well other than to say " can I go home, I'm not feeling well?"


 


There were no signs of any illness or vommitting or anything that would limit a major life function. When they were told no the response was " you cant force me work if I say I dont feel well."


 


So, if I understand you correctly, I do not have to allow the employee to come back to work until they provide a doctors note, correct?


 


As the employer ( I am just a very small business) cant I interpret the employee leaving without permission as abandoning their job / voluntary quit?


 


Thank you!


 


 

Expert:  Patrick, Esq. replied 10 months ago.
Thanks for your reply. It it my pleasure to address your followup questions.

"So, if I understand you correctly, I do not have to allow the employee to come back to work until they provide a doctors note, correct?"

Yes, that is absolutely correct. One additional thing I should note, since you say you are a very small business, is that FEHA only applies to employers with 5 employees or more. If you have less than 5 employees, NO law would limit your right to terminate an employee suffering from even a serious health condition.

"As the employer ( I am just a very small business) cant I interpret the employee leaving without permission as abandoning their job / voluntary quit?"

Only if they are not communicating with you and cannot state a compelling reason (i.e. physical incapacitation) for failing to do so. It takes more than a single absence to rise to this level. This employee would need to be non-responsive likely for several days in order for the EDD to agree with your designation and deny unemployment benefits on that basis. (I assume the unemplouyment benefits issue is the reason you bring up voluntary quit, since those who truly do voluntary quit or abandon their job are not entitled to benefits)

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 10 months ago.

"....If you have less than 5 employees, NO law would limit your right to terminate an employee suffering from even a serious health condition."



This is certainly something I did not know and is good news. I am an S-Corp and counting me I am under the threshold with a total of 4 employees. I am sure the EDD would still favor the employee is this situation and grant UI benefits, correct?

Expert:  Patrick, Esq. replied 10 months ago.
"I am sure the EDD would still favor the employee is this situation and grant UI benefits, correct?"

Most likely yes, unless you can demonstrate a pattern of absences which evince a willful disregard for the interests of your company.

See here to read more about when absence from work can constitute "misconduct" (that's essentially what you'd be arguing): http://www.edd.ca.gov/uibdg/Misconduct_MC_15.htm#Absence

I hope that this is helpful and I wish you the very best moving forward. Again please let me know if anything is unclear, and have a great evening.
Patrick, Esq., Lawyer
Satisfied Customers: 6757
Experience: Significant experience in all areas of employment law.
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