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We have a small 8 employee office and have an employee with…

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We have a small 8...
We have a small 8 employee office and have an employee with "Valley Fever." She is constantly absent due to an illness she links to this condition. We need a dependable employee who shows up every day and want to terminate her. Are we asking for trouble and is she a "protected" employee because of her "illness?"
Submitted: 8 years ago.Category: Employment Law
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6/16/2010
Employment Lawyer: MDLaw, Employment Lawyer replied 8 years ago
MDLaw
MDLaw, Employment Lawyer
Category: Employment Law
Satisfied Customers: 6,138
Experience: Experienced attorney representing companies and individuals in employment law matters and litigation
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Does she have an employment contract? What kind of documentation has the employee given you with respect to her condition?
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Customer reply replied 8 years ago
There is no employment contract and I believe she gave us a note from her doctor indicating her Valley Fever. I had her go to her doctor a few months ago because of absences and her doctor wrote that it was OK for her to work.
Employment Lawyer: MDLaw, Employment Lawyer replied 8 years ago
Since you have more than 5 employees, the California Fair Employment and Housing Act applies to you. This statute prevents employers from discriminating against an employee because of a medical condition or disability. Therefore, I would suggest that before you terminate her, that you make sure you have documentation of her not being able to do her job because you do not want to invite a lawsuit alleging that you fired her due to her medical condition. A good first step is having that letter from her doctor stating that the illness does not prevent her from working.
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Customer reply replied 8 years ago

Is there anything else I can do to prevent a possible lawsuit? We are not discriminating due to her illness, but we need an employee at work! Suggestions?

Employment Lawyer: MDLaw, Employment Lawyer replied 8 years ago
There's not much else you can do. In this country, anyone can sue anyone for anything even if they don't have a viable case. We tend to be a rather litigious society. I gave you my suggestion. Document her attendance issues and document any other work issues in writing and give her written warnings about her attendance issues and/or any other work performance issues so that you can show that she was terminated for performance.

Depending on how long she has worked for you and depending on how much you want her gone, you can also terminate her and offer her a severance agreement in exchange for her agreement not to sue.
MDLaw
MDLaw, Employment Lawyer
Category: Employment Law
Satisfied Customers: 6,138
Experience: Experienced attorney representing companies and individuals in employment law matters and litigation
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Customer reply replied 8 years ago

I think we'll just keep documenting. There is no way I would offer any employee a "bribe" not to sue since in my opinion there is no basis. However, I know that the courts generally tend to favor the employee.

 

Thank you for your help

Employment Lawyer: MDLaw, Employment Lawyer replied 8 years ago
It's not a bribe. It's a very common practice when terminating employees. It's actually not true that all courts favor employees. In my jurisdictions, employers are actually favored.
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