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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 16186
Experience:  Licensed Texas General Practice Attorney
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I have a business in Virginia that employs about 30 people.

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I have a business in Virginia that employs about 30 people. One of the employees who had called in sick the last couple of days informed us today that she will be out indefinitely because she will be having gall bladder surgery. We have been able to shift people around to make up for her loss but we can't do that indefinitely. We cannot hire someone on a temporary basis and we may need to replace her with a full time employee. What is the law regarding such situations.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :
Virginia employees may be eligible for time off work under the federal FMLA, but state laws don't create any additional leave rights. That means for actual work missed, there is no Federal or state protected leave if she does not qualify for FMLA (and if she works for an employer with less than 50 employees, she would not qualify). As such, you could terminate her for absence, even if she would otherwise qualify for such medical leave if she worked for an employer of 50 or more.
ScottyMacEsq :

 


The only limitation will be if you have a written employment policy in place that would grant her protected medical leave in this situation. Assuming that you don't, you can legally replace her with another employee and lay her off, because she does not qualify for any protection of her job.


 

ScottyMacEsq :

In short, you can lay her off, or set any condition up to and including termination on her, and she would not have any recourse. THat's entirely up to you.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Thank you. That does clear things up quite a bit. So what you are saying is that it is entirely up to us if we want to replace her if we think that our business will be adversely affected by her prolonged absence without worrying about any legal issues.

ScottyMacEsq :

Yes, that's correct.

Customer:

Thank you so much. I will certainly give you the highest rating.

ScottyMacEsq :

Again, she does not have any law that would protect her from her absence from work (because FMLA, the law that would protect her, does not apply with less than 50 employees.

ScottyMacEsq :

Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

Customer:

No. Thank you1

ScottyMacEsq :

My pleasure. If there's nothing else, please rate this answer so that it will close out and allow me to assist other customers that are waiting. Please note that I don't get any credit for the time Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Should I continue to await your response, or may I assist the other customers that are waiting?

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