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Patrick, Esq.
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Category: California Employment Law
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We have an employee ( staff accountant) who left August 30

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We have an employee ( staff accountant) who left August 30 on medical leave ( knee replacement)
she filled out the FMLE forms and Dr signed. She has now applied for state disability(CA)

1) even with her applying for disability do we still have 12 weeks max to have her come back to work before we have the right to re hire? we weren't sure if the disability changes things.
2) our company has acquired a new CEO and he is reorganizing the employee structure. He is wanting to eliminate the position of staff accountant entirely and hire a controller instead ( someone with more experience) but can we lay her off while she is out on medical leave???
Good morning and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

SDI and FMLA leave serve to entirely separate functions, the former providing wage replacement and the latter providing job protection while the employee is out on leave. The two are very often taken in conjunction and neither program affects the rights and entitlements afforded to the employee under the other.

In other words, the fact you have an employee out on FMLA who is now applying for SDI does not affect your obligation to provide up to 12 weeks of job leave, provided her medical provider certifies that she is continuing to suffer from a "serious health condition" for that duration of time.

With regard to your second question, FMLA only protects an employee from adverse employment action occuring as a result of their absence from work. It does not provide "absolute" job protection such that an employer will be prohibited from terminating the employee for other reasons unrealted to the taking of leave, such as corporate restructuring or misconduct discovered after the employee went on leave.

The problem with laying off an employee due to a corporate reorgnization while that employee is on FMLA leave is that courts will STRONGLY scrutinize such employment action to determine whether the stated reason was really just a pretense for unlawful FMLA retaliation. Since the U.S. Supreme Court's ruling in McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, employers actually bear the affirmative burden of proof in court to prove that an employee terminated while on FMLA leave was terminated for a legitimate business reason unrelated to the taking of leave.

In effect, the deck is a bit stacked against the employer if they wish to terminate an employee while that worker is out on leave, and unless the employer can make a compelling case that the employee would have been let go either way (i.e. the employee is one of many others in a similar group of positions who are also being laid off, of substantial misconduct of some kind is discovered while the employee is away), it is generally much better to wait until the employee has return. To do otherwise will be to invite litigation, which costs money to defend even if you are able to obtain a dismissal on summary judgment.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

Did this answer your question or can I provide any clarification concerning the above? Please let me know and I will be more than happy to assist you further.
Customer: replied 3 years ago.

yes, I will be meeting with my VP Finance to go over this tomorrow. if he has further Qs how do I reach you back?

You can simply post a response in this question thread. Rating this question will not close the thread and you will still be free to request followup at any point in time.
Customer: replied 3 years ago.

thank you

You are very welcome. If you do not have any further questions at this time, I would be very grateful if you would provide a positive rating now. As noted, that will not close the question and you will be free to pose followup questions tomorrow or whenever need may be.

Enjoy the rest of your day.
Customer: replied 3 years ago.

Hello Patrick-

you helped me in the past re an Employee who is on medical leave.

her 12 weeks is up 2 Dec and we have the FMLE docs signed by Dr with that date.

we were just informed by the employee that she has another surgery on 15 Dec and might not be able to return 2 Dec. Do we have the right since it is 12 weeks 2 dec to let her know that we will need to replace her if she is not back to work on the 2nd.


Thanks for following up. I wouldn't be so quick to terminate on the first day this employee's FMLA expires. If her condition is one which "impairs a major life function," it likely qualifies as a disability under the Fair Employment & Housing Act and under the Americans With Disabilities Act. These laws require employers to "reasonably accommodate" an employee's disabling condition, and courts have held that a moderate extension of FMLA leave can be one example of a "reasonable accommodation."

In order to fire the employee the first day her FMLA expires, you'll need to demonstrate either that her condition doesn't qualify as a disability (unlikely), or that an extension of her FMLA leave is unreasonable because it will impose undue hardship on your business. If you can demonstrate a compelling reason why you need to replace this employee now, you may very well be able to show undue hardship, thus excusing you from offering any further time off. But to fire the employee without exploring that possibility you make yourself vulnerable to a legal claim.

In short, even though an employee's FMLA may have expired, if their condition rises to the level of being a disability they may be entitled to a moderate extension of their FMLA leave as a reasonable accommodation under the FEHA and ADA. As an employer, you'll need to show that additional time off will cause undue hardship and thus is not a reasonable accommodation. Otherwise, you'll need to continue offering time off undue doing so no longer is reasonable.

Admittedly, these are vague standards and there are no black and white answers for when extended leave becomes unreasonable. The best thing an employer can do is document its decision making process so there is support for whatever action they decide to take.

I hope this helps.
Customer: replied 3 years ago.

She is currently on CA state disability, receiving chks.

It has definitely been a hardship for us while she has been out on leave. how would we show/prove this?

There are no real rules here. Hardship can be proven in any way that is relevant to your business. If you can show that other employees are having to work overtime, that deadlines are being postponed or missed, things like that would be helpful.