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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6740
Experience:  Significant experience in all areas of employment law.
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I am a physician in California. An employee of mine has been

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I am a physician in California. An employee of mine has been taking advantage of me lately. She has 35 vacation days/sick days per year. Last year she took 35 days. Her year starts July 1. Since July 1 this year she has already taken 20 days although she has accrued about 9 days.

She shows up late, leaves early, yells at other employees including me. She refuses to do routine assignments I give her. She dumps her work on other employees. She refuses to train newer employees in duties she knows how to do. She has suddenly started taking off every Monday and Friday giving herself a 3 day work week, thus using up 20 days already. I have spoken to her about all this behavior and told her I am losing my patience with her and warned her this must stop.. That day she went home "sick" the next day showed up late and I when I told her she was late she left, came back an hour later with a doctors note and went home.. She told another employee she is going to see a psychiatrist for stress at work and suddenly has carpal tunnel syndrome.. She paddleboards in the ocean every weekend.
Can I fire her without repercussions ? Can I not pay this 2 week period of salary since she now has 11 unpaid days of vacation she just took ?
Submitted: 9 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 9 months ago.
Hello and thank you for entrusting me to assist you. My name is XXXXX XXXXX X will do everything I can to answer your question.

I am very sorry to hear about this problem employee.

Do you have any documntaton of the performance issues to date? For instance, any emails which reflect the problems, any writeups, or anything along those lines?

Also, to be clear, has this employee taken more vacation days than she has earned, and on that basis you want to deduct from her final paycheck?

I very much look forward to helping you on this matter.
Customer: replied 9 months ago.

I just sent it.. not sure why I have this screen again

Expert:  Patrick, Esq. replied 9 months ago.
My apologies--did you receive the questions I asked you above? Specifically, I need to know the following to provide the best possible answer:

Do you have any documntaton of the performance issues to date? For instance, any emails which reflect the problems, any writeups, or anything along those lines?

Has this employee taken more vacation days than she has earned, and on that basis you want to deduct from her final paycheck?


Thank you for your replies to these questions.
Customer: replied 9 months ago.

I'll redo it... not sure what happened I wrote a long response..


 


She has accrued 9 days and has taken off 20 days.. so there are 11 days that she has been off that should not be paid I believe. Usually when employees are out sick for more than 2 weeks they apply for state disability and I do not pay them during that time


 


Documentation.. her vacation days are on the computer.. she entered them herself.. Her behavior I have verbally warned her repeatedly about her behavior, showing up late, leaving early, being verbally abuse to me and other employees, dumping work, refusing work... Nothing in writing , but I was planning on writing it up and putting her on probation for the next 2 weeks.. I think she probably won't show up for work though

Customer: replied 9 months ago.

.

Expert:  Patrick, Esq. replied 9 months ago.
Thank you very much for your reply.

Generally speaking, the laws in this area strongly favor the employer. Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

The only conceivably applicable exception to the doctrine of at-will employment under these circumstances would be disability discrimination in violation of FEHA. To prevail on such a claim, the employee would need to demonstrate that they were terminated as a consequence of their employer's refusal to reasonably accommodate a medical condition which "impaired a major life function."

Not all medical conditions rise to the level of "impairing a major life function." The common cold or flu certainly would not, but other slightly serious conditions certainly could. If the condition does "impair a major life function," then you as the employer have an obligation to reasonably accommodate their health problem, permitting absence from work to the extent that doing so does not impose undue hardship on your business operations. (You do, however, have the right to demand medical verification of the employee's health problem in the form of a doctor's note indicating the employee's inability to work.)

The above assumes not only that your employee's condition qualifies for protection under FEHA but also that you have no other provable and legitimate basis for termination. See, FEHA does not provide absolute job protection, it just prohibits employers form terminating employees who do not first attempt to provide reasonable accommodations. If there is another legitimate basis for termination unrelated to the emloyee's health, the fact they are now "sick" or inacapacitated due to some health reason does not somehow protect their position.

The reason why I asked what you have in terms of documentation of this employee's performance problems is that, in court, everything comes down to what you can prove. Ideally, you would want something more than your own personal testimony of performance problems--you would want evidence of those problems in the form of writeups, emails, witness statements from other employees, etc.

If you don't have any evidence to corroborate this employee's performance issues, they could--at least conceivably--argue that the "performance issues" stated as the basis for their termination are no more than a pretense for unlawful disability discrimination.

Depending on your tolerance for risk, you may or may not be comfortable terminating an employee while they are out on medical leave without strong evidence of the performance issues which are prompting that employment action. It's really a personal decision which comes down to your confidence in the ability to prove this employee was really a problem worker and how likely it is you think they would attempt legal action in the event they are let go while on leave.

The more conservative approach would be to write the employee up and put her on probation. Then, the next time she does something wrong, you can fire her and since now you have a record of discipline and she's no longer on medical leave.

The very short answer here is that you could likely terminate an employee under these circumstances with no legal problems. However, given the outside chance their condition qualifies for protection under FEHA, you then run the risk of a disability discrimination claim if you can't prove that the true basis for termination was performance issues. The more conservative approach is the write the emloyee up, create the appropriate paper trail, and then terminate the employee the next time they do something wrong.

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 and kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6740
Experience: Significant experience in all areas of employment law.
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