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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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I have a employee that went out pregnancy in December 2010.

Customer Question

I have a employee that went out pregnancy in December 2010. Her baby will be 1 year old in Feb 2011. She says she has not got a release from her Doctor yet. How long do we have to hold her job. Also she pays for half of her insurance and I pay half. She is 7 months behind in paying her half. I have been paying for it. I would like to move on and not HAVE to hold her job. Can I do that. THANK YOU !!
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question.

Is your employee out of FMLA leave? FMLA is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of:

(A) the birth or adoption of a child, or the placement of a child with the employee for foster care;
(B) the employee’s own serious health condition which prevents him/her from working;
(C) a parent, spouse or child’s serious health condition where the employee is needed to care for that family member;

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s worksite are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period.

Among other things, an employer can be sued for interfering with an employee’s FMLA leave, denying FMLA leave, refusing to reinstate an employee who timely returns from FMLA leave, requiring an employee to take more FMLA leave than the employee needs, or retaliating against an employee who takes FMLA leave.

To avoid a claim that you discriminated against your employee, or that you interfered with his or her rights under the FMLA or CA law, you must be able to show that the employee would have been terminated even if he or she had not taken medical leave. This will be very difficult to prove. As a practical matter, it is wiser to bring the employer back and document their work performance. When you can establish a record of substandard performance, release them and then you will have a very solid basis for contesting any potential discrimination claim they may bring.

I hope that this helps you decide what to do.

If my answer has been helpful to you, please click on the GREEN ACCEPT button directly above. I will not get credit for assisting you or receive payment for my work unless you do this. Your question will not close after you click "accept," and you will still be able to ask follow-up questions if necessary.
The only facts I know about your situation are the ones that you tell me, so please try to be specific and bear in mind that, occasionally, miscommunications will occur. I will do everything I can to clarify my answer if I have misunderstood your question. Also bear in mind that the law does not always read how we think it should. I ask that you be understanding if an opinion I have provided is not consistent with what you wanted to hear.
Finally, the information that I have provided is not legal advice. I am not acting as your attorney and my answer does not establish an attorney-client relationship between us. I encourage you to consult with a local attorney in regard to legal matters.
Customer: replied 5 years ago.
What can I do about her insurance that she has not paid her half. I have paid her half for seven months. You did not address that problem at all.
Expert:  Patrick, Esq. replied 5 years ago.
You are entitled to obtain reimbursement for the amounts owed to you pursuant to your agreement. You can obtain this through a civil action, but NOT by deducting from the employee's wages. Further, this typically cannot serve as a basis for termination while an employee is on protected leave. I hope that this helps and please remember to click "accept" so that I can be paid for my time. Thanks so much.
Expert:  Patrick, Esq. replied 5 years ago.
Please feel free to let me know if I can provide you with any additional information.
Expert:  Patrick, Esq. replied 5 years ago.
If my answer has been helpful to you, please click accept so that I can be paid for my time. Thanks for your understanding.

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