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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18789
Experience:  Employment/Labor Law Litigation
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I have an employee that has been out sick alot lately and is

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I have an employee that has been out sick alot lately and is out another week starting today. She has been using her vacation time which will end soon and she has no sick leave left. The work that she does comes in batches and currently I have four people that do this work. We are swamped now and she is not there to help, but come 7/8 we may have the work done (we have deadlines that we have to meet to customer). Question #1 - if I have no work for her to do come her return date 7/8 should I send a certified letter to her home telling her that there is no work and that she can check in each morning to see if we need her 2) Can I switch her from full time to as needed? I already told her that if she can no longer work 40 hours a week then she needs to let me know so that I can make arrangements as needed. In the past, even if there was no work, I never sent anyone home, I just paid them to sit there. This person has worked for me for over 5 years and happens to be the oldest. Is there a risk, if I end up not needing her and letting her go, that she will file an age discrimination or something like that? The reason she would be the first to let go, if workload continues to slow down, is because of her absences over the last month (a total of 52 hours she has been out over 1 month). Thank you.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.


How many employees does the company have?


Has she been using FMLA for her time off, meaning Family Medical Leave as approved by a doctor?

Customer: replied 3 years ago.

I have 6 employees. She has not been using FMLA, she has been using vacation and sick leave. I only asked her for the doctor's note yesterday when she finally came to work and then last night at 8:09 pm she sends a note where an alternative doctor told her she should be off work for a week to get some rest (nutritionist saying she was having trouble with spicy foods) So she barely gave me any notice that she would be out for another week after being out already this week

Well, you can use FMLA at the same time as vacation in order to provide you protection from termination for missing time due to medical issues.


That being said, she can't use FMLA because the company is not large enough. The company would require 50 employees before FMLA applied.


Furthermore, the company requires 20 employees before age discrimination laws apply. You can change her schedule as you wish in this situation, though it is helpful to at least explain your reasoning for doing so.

Allen M., Esq. and 3 other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

In regards XXXXX XXXXX supposed return date of 7/8, if I don't have the work do you suggest I just email or call her or send certified to her house letting her know not to come in. And then I can talk to her about changing her schedule when she comes in. Thanks alot

There is no special legal requirement for a certified letter. You can call or email and that has just as much legal significance.


Calling her seems the most judicious method of doing what you want here.

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