California Employment Law

Have California Employment Law Questions? Ask a Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

California Employment Law
This answer was rated:

When I am on approved vacation/family leave or sick with a

doctors note. Can I be...
When I am on approved vacation/family leave or sick with a doctors note. Can I be fired if I don't do any work? Does it matter that I am an exempt employee?
Show More
Show Less
Ask Your Own California Employment Law Question
Answered in 19 minutes by:
8/4/2012
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,397
Experience: Significant experience in all areas of employment law.
Verified
Hello again and thank you very much for requesting me to answer your question.

Unfortunately, an employer is free to terminate an employee while he or she is on approved vacation or sick with a doctor's note. This is true because employment in the state of California is presumed "at will" absent an express agreement to the contrary (Labor Code 2922) and at will employment can be terminated at any time.

Two potentially relevant exceptions are FMLA leave and California's pregnancy disability leave.

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: (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. An employer cannot terminate an employee on FMLA leave in retaliation for them exercising the right to take such leave.

However, as noted above, more than a mere doctors note is required for FMLA leave--the condition for which leave is taken must be a "serious medical condition." Further, only employees of large companies (50 or more employees) are eligible.

The second potentially relevant exception is California's Pregnancy Disability Leave Law, which permits pregnant employees or employees who have just given birth up to four months of protected leave. In contrast to FMLA leave, an employee will be eligible for PDLL if their employer has just 5 employees.

I am happy to provide more information on PDLL if that is necessary, but you have not indicated that the leave you are inquiring about is pregnancy related. If it's not, then this "family leave" would not be protected under any other law, typically speaking.

So to summarize the above, an employee ordinarily gains any special protection when he or she takes approved vacation, sick leave or family leave. An employer retains absolute discretion to terminate employees on such leave pursuant to the "at will" employment doctrine. However, an employee who takes FMLA leave for a serious health condition, or "family leave" pursuant to PDLL would be protected from employer retaliation stemming from their work absence.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

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

Thank you and very kindest regards.
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,397
Experience: Significant experience in all areas of employment law.
Verified
Patrick, Esq. and 87 other California Employment Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago

What if we have entered into a year contract that allows sick leave and FMLA and at the end of that contract I will be given a serverence. Can they wait until almost the end of the contract and then fire me even if I live up to it so they dont have to pay me the severence?

Rene,

Thank you very much for your reply. Does the contract you have entered into permit them to fire you at will? Does it state that severance "shall" be given at the end of the contract, or is it discretionary?
Ask Your Own California Employment Law Question
Customer reply replied 5 years ago
Yes, I can be fired at will. It says that the severance shall be given at the end of employment. It does not say discretionary.
Rene,

I think this would come down to a matter of contract interpretation. If a contract states that severance "shall" be given "at the end of employment," I would interpret that to mean the end of employment, regardless of when the "end" actually is. Thus, even if the employment contract was for one year, the employer "shall" give severance whenever the employment actually ends, even if the one year period never culminates.

On the other hand, if the contract clearly conditions severance on the completion of one year of employment and the employer may terminate employment prior to one year, then yes, I think that most likely they could get out of paying severance by terminating the contract prior to that year.

Please understand that I am speaking merely in hypotheticals here and the above should not be construed as "advice," simply my assessment of a hypothetical situation.

I wish you the very best moving forward.
Ask Your Own California Employment Law Question
Ask Patrick, Esq. Your Own Question
Patrick, Esq.
Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 13,397
13,397 Satisfied Customers
Experience: Significant experience in all areas of employment law.

Patrick, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

LawTalk

LawTalk

Attorney

1,285 satisfied customers

I have 30 years of experience in the practice of law, including employment law and discrimination law.

Tina

Tina

Attorney

923 satisfied customers

JD, 17 years experience & recognized by ABA for excellence in employment law.

Brandon, Esq.

Brandon, Esq.

Lawyer

348 satisfied customers

Has received a certificate of recognition from the California State Senate for his outstanding legal service.

melissamesq

melissamesq

Attorney

47 satisfied customers

Represent clients to maximum recovery in employment cases.

legalg

legalg

Other

35 satisfied customers

General Practitioner. Research Attorney

Roy Hadavi

Roy Hadavi

11 satisfied customers

Attorney at Law Offices of Rosenstein & Associates

Attorney2020

Attorney2020

Lawyer.

69 satisfied customers

I have significant experience in employment law.

< Previous | Next >

Related California Employment Law Questions
I live in Los Angeles and I have a some job conserns,
I live in Los Angeles and I have a some job conserns … read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
18,393 satisfied customers
Until last Friday, I was an independent contractor (1099)
Hello,Until last Friday, I was an independent contractor (1099) working for a Los Angeles booking agency. I booked bands nationally for shows and in exchange for the use of the company's license, bran… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,403 satisfied customers
I have a question, I'm getting a job at a company and they
I have a question, I'm getting a job at a company and they are offering me options. However they are not telling me strike price. Should I be concerned? … read more
Asad Rahman
Asad Rahman
Attorney
J.D.
2,300 satisfied customers
I am the manager at my family business and had a customer
I am the manager at my family business and had a customer write a check that bounced I would like to help from a lawyer to recover funds of $18k … read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
18,393 satisfied customers
I am a Case Manager for developmentally disabled clients and
I am a Case Manager for developmentally disabled clients and am required to travel from each of my clients house within the county and spend 2 to 3-hours with each one. I drive my personal car and am … read more
Patrick, Esq.
Patrick, Esq.
Lawyer
13,397 satisfied customers
I have a question on W2 employee and W2 contractor. I am
I have a question on W2 employee and W2 contractor. … read more
Roy Hadavi
Roy Hadavi
Juris Doctorate
11 satisfied customers
How soon can I get a response from an employment lawyer. CA.
hello how soon can I get a response from an employment lawyer … read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
My husband works for a company that has a Union Contract. At
My husband works for a company that has a Union Contract. At times he is made to work up to 3 weeks straight with no time off. Is this legal? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,403 satisfied customers
This is new to me since I was never before been terminated
Hello, this is new to me since I was never before been terminated this way, only once as a multiple layoff situation. My employer of 27 months, a very successful start up who has grown from a 100 empl… read more
Bill Attorney
Bill Attorney
law
1,607 satisfied customers
I have a question concerning my open California State
I have a question concerning my open California State Disability. … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,403 satisfied customers
Marsi I worked for local 324 from 1987 to 1995 they say I am
Hi my name is ***** ***** I worked for local 324 from 1987 to 1995 they say I am short seven to 10 hours to become vested I believe I had a total of 9800 hours but all of my papers burned in Sonoma co… read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
18,393 satisfied customers
I have been called to an investigation meeting with my
I have been called to an investigation meeting with my employer based on a complaint that another employee said i have been rude and condescending for 2 years. The interrogation is on Tuesday. I would… read more
Asad Rahman
Asad Rahman
Attorney
J.D.
2,300 satisfied customers
I was out on pregnancy disability from april 1, 2017- August
I was out on pregnancy disability from april 1, 2017- August 1, 2017, then took 6 weeks of cfra from August 1 to September 12th. … read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
I suffered a workers comp injury back in 2013 and have
I suffered a workers comp injury back in 2013 and have lifetime medical for psych and my right shoulder here in CA. My case was recently reopened, and I would like to request a service dog again for m… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I am looking for an attorney with experience in workers
Hello, I am looking for an attorney with experience in workers compensation … read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
I am looking for help regarding my job, which is
I am looking for help regarding my job, which is headquartered in California, but I am located in MI … read more
Patrick, Esq.
Patrick, Esq.
Lawyer
13,397 satisfied customers
A company offered a PR position to service their LA and NY
A company offered a PR position to service their LA and NY agencies. The employed mentioned that this position would also be helping their TBD/soon to be launched company. Upon confirming employment, … read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I have a small California based consulting business. So far,
I have a small California based consulting business. So far, it has been me with no employees on payroll. My first full time employee comes on board next week. I want to make sure I am in compliance w… read more
Asad Rahman
Asad Rahman
Attorney
J.D.
2,300 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x