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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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We are a small restaurant in California with less than 20 employees.

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We are a small restaurant in California with less than 20 employees. We have a bartender who twisted his back when reaching for a bottle of liquor. The first doctor released him to come back to work, but he wanted a second opinion and the second doctor released him with the restriction of lifting no more than 10 lbs and keeping off his feet. We do not have a job that can accommodate these restrictions. He clearly has the mindset of working the system. He is dealing with Worker Comp on his treatment and lost wages. In the mean time, we have had to hire a new bartender to fill his position. Once he is cleared to come back to work without restrictions, do we have to give him his hours back? Or can we terminate him.

I'm sorry to hear about your situation and hope I can help.

My name isXXXXX am a licensed attorney, and my goal is to provide you with excellent service today.

If you are unable to accommodate the restrictions that have been placed on your bartender then you are not under any obligation to give him his hours back and can terminate him.

Otherwise, when he is released to return to work without restrictions, you can terminate him as long as you have a basis for doing so that is unrelated to him filing a workers' compensation complaint. (For instance, not having an opening since you hired a new employee).

If you don't have a valid reason for terminating him, you could potentially be subjecting yourself to a retaliation lawsuit, since it is illegal for an employer to terminate an employee in retaliation for him filing a workers' compensation claim.

I hope the above information is helpful.

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Thanks and best of luck!

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