Employee out for personal motorcycle accident

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Employee out for personal motorcycle accident

Employee has been out for over a year hasn’t
contacted the employee for for almost the same. Had
surgery and now wants to come back. We have
since hired another employee. Are we bound to give
him back his job. We filled the position

Asked on March 21, 2017 under Employment Labor Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A company is not liable to hold a job open for a year. If an employee qualifies for Family and Medical Leave Act (FMLA) leave, they are entitled to take leave for up to 12 weeks every 12 months for a serious health condition. To be eligible for this type of leave, they must have worked for you for at least 1 year, have worked 1250 hours in the past 12 months, and you must employ 50 employees within a 75 mile radius of the workplace. Also, if an employee's condition meets the definition of disability under the Americans with Disabilities Act (ADA), they may be entitled to more than 12 weeks of medical leave if their request for leave is reasonable and you can't show that their leave presents an "undue hardship" to the business. Whether leave is "reasonable" or presents an "undue hardship" will depend upon the length of leave requested.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, you are not. The *most* a company might have to hold a job is 12 weeks, if the company was covered by, the employee was eligible for, and the employee specifically used Family and Medical Leave Act (FMLA) leave. But again, that's only 3 months. There is no law requiring you to hold a job for a year.


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