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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Dear Attorney, Referring my previous question, our employee

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Dear Attorney,

Referring my previous question, our employee who misses her scheduled shifts, I was planning to give her termination letter at end of shift yesterday. However, just before shift, she sent message that she has doctors appointment and her mom will not allow to come to shift as he passed out in college on Tuesday, so she is feeling week.
1) Do you see any issue, if I email her about her termination? Want to avoid any legal case, etc. by her.
2) What wording shall I specify? I am basically terminating her limited avaialablity and missing the shifts.
Thanks
Kumar

Thank you so much for your question.

FEHA does require employers with 5 or more total employees to "reasonably accommodate" workers suffering from health conditions which "impair a major life function." The only conceivable basis for legal action is that termination was in retaliation for a "disability related" absence, and thus in violation of FEHA.

Obviously, an employee bent on litigation can always find some fabricated basis to assert a claim--all you can really do is effectively manage that risk. To do that if you wish to proceed forward, termination should include a written explanation of the performance issues motivating the decision so that it is very clear you are not letting the employee go due to her medical condition or as a result of your refusal to reasonable accommodate her medical needs.

Any time you terminate an employee following a medical-related absence, you are going to have FEHA in your sights, but as noted, at a certain point you have to take decisive action and figure out what degree of risk is acceptable for your company to bear. Here, the risk is very minimal, though worth it for me to acknowledge in my answer to your question. However you decide to proceed is of course up to you, but if I were in this circumstance I would be comfortable with termination provided I had a record of the performance issues to date.

 

There is nothing wrong with termination by email but you will need to make sure you mail a check for final wages that same day.

I hope this helps, and please let me know if I can be of further assistance.

Customer: replied 3 years ago.

I see.


So, last week, thsi employee said, she was sick so couldn't come to shift and yesterday said had doctor's appointment, so couldn't come.


 


1. Can I ask for doctors not that she was available for these 2 missed shifts?


 


2. If I have terminate now, what shall I mention in the email? as both times she stated that it was medical reason. And, further, she has started that her avaialablity is very limited due to classes, etc. so I will need to keep checking her every week for her availability.

Thank you for your reply.

"1. Can I ask for doctors not that she was available for these 2 missed shifts?"

Yes, you can ask for a doctor's note, but cannot inquire into the underlying medical condition.

"2. If I have terminate now, what shall I mention in the email? as both times she stated that it was medical reason. And, further, she has started that her avaialablity is very limited due to classes, etc. so I will need to keep checking her every week for her availability."

You will want to emphasize the performance issues. To address your obligations under FEHA, you will also want to probably mention that you have attempted to reasonably accommodate this employee's absences so far, but that it is causing undue hardship on your business operations and as such cannot be sustained.

I hope this clarifies things.
Customer: replied 3 years ago.

Thanks Attorney.


 


Do you have any suggestions/ updates to below email:


 


Hi Madison,


 


We have decided to terminate your position with Yogurt Delight effective immediately.


 


We have attempted to reasonably accommodate your absences so far, but that it is causing undue hardship on business operations and as such cannot be sustained. Further, as you repeatedly mentioned that your availability is very limited to work and changes due to other commitments.


 


Since you didn't work any shift during this pay period, so there is no payment to process.


 


Please return your company T-Shirt in next week to store.


 


Wish you all the best for your future endeavors.


 


Thanks,


Kumar

Very appropriate, Kumar. Your letter touches on all the "legal bases" and is excellent.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Thanks much.


 


Just part of my personality, I like to keep good relations even with terminated employees as I feel they are good kids; but just not right fit. So, I generally meet/speak in person before termination.


 


 


One last question:


1) Do you see any issue, if I mention all this information to her on phone and then send email? Phone call makes it more personal.


2) Or, shall I just send email? to avoid any legal issues.


 

There is no issue with first discussing it over the phone, none at all.

Good luck with this.
Patrick, Esq. and other California Employment Law Specialists are ready to help you