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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 am about to sign an exempt employment contract and have questions in regard to it. I am a House Director for a Sorority and have an apartment as part of my pay, which is outlined in my work contract. The clause in my contract reads: In case of a debilitating illness, surgery or injury the House Corporation (my employer located in Ohio) will not provide time off. I am required to vacate my apartment if an extended recuperation time of four weeks or longer is required. Now, I have injured my knee about eight weeks ago at my work. The accident happened when I tripped on a loose brick on the entrance steps of the Chapter House. Although I’ve reported the item two months earlier and when I was asked to make a list of all items that require repair, I was denied. After I got insured I emailed the House Corporation and told them about my injury and finally got the approval for repair of the steps. My knee is defiantly injured and is swollen and it hurts to walk on. I have not gone to the doctor, because I feared that they will fire me and that I would lose my job and my apartment. . I do not feel comfortable by signing this contract containing the clause. What is your intake on this? What are my next steps? Should I file a claim with the labor board ? Go to a lawyer?
Hello and thank you for entrusting me to answer your question. Please understand that none of my response constitutes "legal advice," nor is any attorney client relationship created between us.

If you were injured while on the house property, the injury would likely be covered by workers compensation insurance, since it technically occurred "on the job." If a worker elects to make a workers compensation claim for injury incurred on the job, he or she is protected from retaliation by his or her employer. Thus, an employer could not terminate someone in response to them taking time off for a workers compensation claim.

Furthermore, an individual in this circumstance may be eligible to take protected leave pursuant to the Family Medical Leave Act. The Family Medical Leave Act, or "FMLA," is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of, among other things, "the employee’s own serious health condition which prevents him/her from working."

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

This all becomes more complex when the employee is living in an employer-provided residence. This is because, while an employer must preserve the position of an employee who takes FMLA leave or files a workers compensation claim, they are not required to pay the employee their usual wage for that time off.

Since lodging is part of your "wage," your employer would typically be under no obligation to continue providing lodging while you are out on workers compensation or FMLA leave. Thus, an employer would generally be free to require an employee to vacate employer-provided lodging when the employee is recuperating from an extended injury and on FMLA leave.

So, to summarize, an employer typically cannot terminate an employee in retaliation for filing a workers compensation claim or an employee who elects to take FMLA protected leave. However, an employer can typically require an employee who takes an extended leave of unpaid absence to vacate employer-provided housing because that housing is considered a wage and an employee is not entitled to his or her usual wage while out on FMLA or workers comp.

If an employee in this circumstance elected to file a workers compensation claim and take FMLA leave, their job would be protected, but their housing likely would not be. I hope that makes sense to you.

Again, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Customer: replied 5 years ago.
Thank you very much. i still need to know if I can sign that clause in the contract or if I have to make a written amendment??? I am not planning to stay off work. I am concerned about the clause. Do I tell the employer my concern? Or do I file a claim?
You are very welcome.

I'm sorry I did not more specifically address that question. Although I cannot technical advise you on what to do because that might be construed as legal advice, I can tell you that the contract clause you have related to me appears to be an accurate description of the rights that a employer would already have in this instance (for all the reasons explained above). Thus, signing such an agreement would probably not amount to a "waiver" of any existing rights.

I hope that this helps clarify. Please let me know if my response is still at all unclear.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you, XXXXX XXXXX excellent advise.....L.
You are very welcome. I'm glad I could help and I hope that you recover soon. Best regards.