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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 37855
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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My husband is currently out of work on disability, with doctors

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My husband is currently out of work on disability, with doctor's excuse letter starting on 9/24/12, for back problems. He was planning to get cortisone shots and return to work. Today, he received a letter from his 401k administrator asking how he would like his funds distributed because his company will not maintain the account for "former employees". He has not heard anything from his boss. I don't know what they consider his termination date or reason to be. He has at least 1 full week of vacation that has not been paid out. What are his rights and how should we proceed?
Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation.

It sounds as though the employer is getting ready to terminate him, but has not yet officially done so.

He is entitled to his vacation pay immediately upon termination---though the employer can demand that he pick it up at the place of employment.

As he is apparently being terminated not for cause but because he is on disability, he will be immediately eligible for unemployment benefits as soon as he is released by his doctor to work.

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I wish you the best in 2012,

Customer: replied 4 years ago.

Thank you, XXXXX XXXXX helpful. So is it legal for them to fire him because of this disability? Should I pursue additional discussions with a lawyer?

Good afternoon,

It is not illegal to terminate someone on disability unless they are out on Family Medical Leave Act (FMLA) leave.

To be eligible for leave under the FMLA or the CFRA in California, an employee must be either a full-time or part-time employee, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period (24 hours per week) before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee's work site.

So, unless your husband meets all of the above criteria, he was not on FMLA leave, and the termination is legal.

In CA, and all other states besides MT, employees are presumed to be "at will." At-will employees may be terminated for any reason—at any time, even a mistaken reason, they can have their hours or pay decreased and they can suffer a cut in their benefits, so long as it's not illegal or unlawfully discriminatory.

Unlawful discrimination would include an employer discriminating based upon a person’s Ethnicity, Color, Religion, National Origin, Gender or Disability.

So, there is probably no benefit to be had by hiring an attorney in this instance.

Thank you for your kind words. They are appreciated. However, until you rate me highly for my service, I will not be credited with helping you. Would you be so kind as to highly rate my service to you so that I will be credited with assisting you.

Thanks again.

Have a great day,


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