Legislative News

Protections to Consider Before Firing Employee
 for Excessive Absences We have an employee who has had some attendance problems and we were just getting ready to terminate her when she called in sick again. Can we terminate her?

The answer to that question depends on what rights the employee has to be off work. If the employee is out due to a workers’ compensation injury or illness, a pregnancy disability, or a medical condition that would qualify for either a Family Medical Leave Act (FMLA) leave or accommodation under the Americans with Disabilities Act (ADA), the employer needs to be cognizant of those rights and proceed cautiously.

Workers’ Comp Claim An employee who has a workers’ compensation claim for a work-related injury or illness may need some period of time off to recover and return to work. The employee’s absence may be covered by FMLA, California Family Rights Act (CFRA), and/or disability law.

Additionally, if during the claim an employee calls in sick or misses work due to that injury or illness, an employer may not proceed with discipline or termination without the risk of invoking a discrimination or retaliation claim.

When an employer terminates an employee or takes an adverse employment action against an employee with a pending or open workers’ compensation claim, or if the employee has told you that he/she intends to file a claim, the employer may be subject to a 132 (a) workers’ compensation discrimination claim, which is not defended or paid for by the workers’ compensation carrier.

If an employer feels the need to take action against an employee protected by these rights, the employer should seek legal advice.

Pregnancy

If the employee is pregnant or has a pregnancy-related medical condition, the employee’s job is protected for up to four months or 88 working days, whichever is greater.

Although it may be frustrating for an employer to have an employee call in sick throughout her pregnancy, state law requires that an employer accommodate absences related to the pregnancy as well as prenatal care appointments.

The employer may, however, advise the employee that it will count the time taken for the pregnancy-related absences from the total leave time available to the employee and the employer may request medical verification that the employee will need to miss work due to the pregnancy.

Medical Leave Protections

If the employer has a legal obligation to provide family medical leave or has voluntarily adopted a family medical leave policy, the employer must provide the employee with a notice of FMLA/CFRA rights if the employee is eligible (worked for the employer for one year and within the last 12 months worked 1,250 hours). The employer may require a serious health condition certification form to be completed by the employee’s medical provider to substantiate the need for the leave. Once a certification is obtained:

• absences related to that serious health condition are counted toward the total amount of time that the employee has available (12 weeks maximum within a 12-month period).
  

• the employee is not required to provide doctor’s notes for each time the employee is off work related to that serious health condition.