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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12472
Experience:  Significant experience in all areas of employment law.
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Are you familiar with employment law in CA?

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Are you familiar with employment law in CA?
Hello and good evening. I am a California licensed attorney who is knowledgeable in the area of employment law. Did you have a question you'd like assistance with?

I very much look forward to helping you.
Customer: replied 4 years ago.

Hi LegalPro54,


Looks like the original question must not have been forwarded to you. Here's the situation: we are a small optometry office (owned by 2 doctors) with 3 FT and 2 PT staff. In November, one of the FT staff took leave to have a surgery on her hand (not work related). Was supposed to be 5-6 weeks, then changed to over 12 weeks. We need to hire and train a PT person. Once the regular staff wants to return, are we obligated to give her FT with benefits? What if we like the new person better or only want the former FT person for PT instead? This FT person who left wasn't our best person anyway and now we're thinking this could be a way to improve things in the office.


Thanks for your reply. I apologize for not receiving your original message.

The answer to your question is rather simple. Employment in the state of California is "at will" absent an agreement statign to the contrary (see Labor Code 2922). When a position is "at will," employment may be terminated or the terms of employment may be changed at any time.

Employees do not by default enjoy any sort of special protection from the doctrine of at-will employment when they take leave for medical reasons. The only relevant exception is if the leave is protected under the California Family Rights Act or the Family Medical Leave Act. The CFRA and FMLA are essentially the exact same thing, the former simply being state law and the latter being federal law. These acts provide eligibile employees up to 12 weeks of protected, unpaid job leave on account of a serious health condition.

Although recovery folowing surgery would qualify as a serious health condition under these laws, they do not apply because both CFRA and FMLA cover only those employers with 50 or more employees within a 75 mile radius. Your office is far too small.

Since there is no other law, state or federal, that would protect an employee out on leave following surgery, and since employment in the state of California is otherwise at will, an employer in your circumstance is free to cut the returning employee's benefits, or even prevent them from returning all together.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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

Very best wishes and happy holidays to you.
Customer: replied 4 years ago.

Thank you for your help and the references to the Labor Code and FMLA/CFRA. Your response was very quick and informative. In contrast, I am still playing phone tag with a possible referral I called four days ago!

You are very welcome! That really is one of the benefits of this site--it connects you with an expert immediately.

Did you have any additional concerns? If so, I am very happy to continue helping. If not, I would be most grateful if you would remember to provide a positive rating of my service so that I may receive credit for assisting you.

Have a great weekend.
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