Can I terminate an employee while they are out on leave?

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Can I terminate an employee while they are out on leave?

I have an employee who was hired, worked for 1 week and then filed for

disability for a mental health condition. Due to the time worked, he’s not

eligible for FMLA. He has since been granted 98 working days of unpaid leave

since thus far he keeps coming in with doctor’s notes that extend his time off by a month. Am I able to let him know that if he doesn’t return to work as stated on his most recent note that we cannot keep his job open any longer? Would that violate any ADA, FEHA or FMLA laws?

Asked on May 24, 2018 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Employees may only legally miss work, even for medical or disability reasons if they 1) have and use paid time off which they earned for the absence; and/or 2) are eligible for and use FMLA leave or leave under a state medical leave law. A new employee who is not eligible for FMLA or state leave and who does not have PTO for his absence--or has exceed his time under PTO, FMLA, or state leave law--may be terminated; you do not need to simply hold his position indefinitely, regardless of the reason for his absence. That he may be eligible or get some form of disability payment means he gets monetary support--not you have to keep holding his job.


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