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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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Were a retailer. A full time employee got hurt outside workplace.

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We’re a retailer. A full time employee got hurt outside workplace. The employee has been on state disability since. A month or so after his injury, I called to check how he's doing. I said to him that his job requires standing most of the time & he can’t come back to work till he's well enough to do the job & released by Dr.
Later, he called 3 different times & said he'll be back to work after Dr appointment. But each time he called after Dr appointment to give us a new date of next Dr’s appointment. He called a week ago & said he has Dr appointment two weeks later. And Dr said he'll be able to come back to work after the appointment.
About 21/2 weeks ago, we sent him a letter to acknowledge the receipt of Dr’s Certificates for work he sent us. OnXXXXXsigned certificate for work we received, it's circled that he’s able to return to work with "none" restriction. The two Certificates for work from Dr showed he’s able to work with none restriction over a month ago.
We don't understand why he didn't mention these 2 Dr’s certificates & has not come back to work for over 4 months & close to 5 months from his absence. I told him when he called a week ago that it's been over 3 months since his injury & he didn’t return to work. We may not be able to have him back because we already hired new employees. He said he wants to come back to work & he has worked for us many years. I said we'll check if we're able to give him a part time job.
Question: If we hire him back after Dr’s release, is it OK to offer him part time job?
Or if it's OK to terminate his employment & ask him to re-apply for the job?
He has earned vacation pay. We offered to mail the vacation check to him while we talked a week ago. But he asked to wait several more months when he takes vacation & get vacation pay then. Will that be OK?

Pl's let me know if you need any more info & advise. Thank you.
Hello and welcome to JustAnswer.

My goal is to provide you with excellent service.

Before I can answer your question, I need some additional information.

Can you tell me how many employees your company had and whether your employer was on any form of protected leave?
Customer: replied 4 years ago.


No, not that I'm awared of.

1. It would be okay to offer him a part time job as long as he wasn't on any form of protected leave, since then you aren't obligated to return him to a same or similar position once he is able to return to leave.

2. It would also be okay to terminate his employment if you so choose. If you do terminate his employment, you will need to immediately send him a check for his unused vacation time, since it is due at the time of termination.

The above two are only okay, however, if you are terminating the employee due to reasons other than his or her disability. For instance, it seems very odd that your employee has not mentioned that he was able to return to work and has continued to take time off from work when he could work. That would be a reason for his termination, but any suspicions that you have that he wouldn't be able to perform his job due to his injury could constitute discrimination on the basis of disability in violation of the ADA and Fair Employment and Housing Act.

3. As long as you continue to keep him on as an employee, you have no obligation to send him his vacation pay, and can wait till he wants to use his paid vacation and/or when you do decide to terminate him.

Since my goal is to provide you with excellent service, please let me know if you have any follow up or clarifying questions.

If not, please remember to rate my answer positively so I get credit for my work!

Thanks and best of luck!
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