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California Employment Law

My employee has a non work related injury and...

Resolved • Response time 1 hour 9 minutes

7 Jan 2013

My employee has a non work related injury and has been out of work for about a month, do I have to give him work when his doctor clears him?
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7 Jan 2013

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California Employment Lawyer's response
7 Jan 2013
Joseph
Joseph
Attorney at Law
Hello and welcome to Pearl.com. Has the employee been on any form of protected leave, or is he just out of work on medical leave?
7 Jan 2013
Customer reply
8 Jan 2013
He just went out because he hurt his knee at the gym, sent me a doctors note to be off duty.
8 Jan 2013
California Employment Lawyer's response
8 Jan 2013
Joseph
Joseph
Attorney at Law
How many employees do you have?
8 Jan 2013
Customer reply
8 Jan 2013
We are a 501 3cm and we have 5 without him 6 with him. Thanks, Martin.
8 Jan 2013
California Employment Lawyer's response
8 Jan 2013
Joseph
Joseph
Attorney at Law
As long as the employee is able to perform the essential functions of the job (with or without a reasonable accomodation), as long as he is still a current employee, you would be legally required to provide him or her with work once he is able to return from leave, since you are covered under the Fair Employment and Housing Act, since you have 5 employees or more. However, if it an undue burden to keep him as an employee currently, or if there is another reason to terminate his employment (economic reasons or a problem with his job performance), you can terminate his employment and wouldn't be obligated to provide him with work once he is cleared to return to work by his doctor.
8 Jan 2013
Customer reply
8 Jan 2013
Hi Joseph, thank you for your response, my final question is, for the first 2 weeks I had his post covered but because of the time he has been out (approx 1 month) I had to hired someone to cover his post because it became to hard to keep it covered by the employees I already had on board. So this was a burden to keep his post open for him. Would that fall under the "undue burden" portion of your answer, because I would have to now terminate a employee to put this one back to work? Again thank you for your help I do really appreciate it. Martin.
8 Jan 2013
California Employment Lawyer's response
8 Jan 2013
Joseph
Joseph
Hello Martin, Yes, that would fall under the undue burden portion of the answer, since you would have to terminate an employee as a result of the employee returning to work. Also, it would be debatable if a knee injury would even constitute a disability, especially if the employee fully recovers from the injury.
Customer rating:
Joseph
Joseph
Attorney at Law
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8 Jan 2013
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