Human Resources/termination


Hello Brian,  We are a small, privately owned manufacturing company in California.  We have an employee that we were about to terminate when he injured his back (non-work related) and had to go on disability.  The disability is a week to week issue, as his doctor evaluates his condition each Monday and states whether he is able to return to work that week or not.  This has been going on for about 3 weeks now.  

Is there any kind of law that requires us to keep him on staff either now, or after his return to work?

Hi Liz,

This is a complicated situation and unfotunately there are many details I'm not aware of.  There are state and fedral laws that prohibit an employee for being terminated because they are recovering from work related or personal non0-work illnesses or disabilities.   These apply based on the number of employees,  50 for FMLA and 15 for ADA.  Also California has a lot of regulations I'm not familiar with right at this time as I dont have any Clients currently in California ....     Each regulation must be tested individually , but they may  all, or just some of them apply at the same time.  For example, an employee can be on FMLA, Workmens' Comp and disability leave all at the same time;  or just FMLA. it all depends on the details of each situation.

One thing though is it is perfectly in your right as employer  to fire/ lay someone off  for documented work  performance reasons,  documented willful misconduct or policy violations or due to business necessity ( no work and slowing down) which can be documented.   At Will  allows an employer or the employee to separate their employment.    

You would want to be very careful not to give the impression the termination is any way cause or rffect related to the disability ir illness.     This can be risky if you dont have your act together with poor documentation of events leading to current.   If an outsider was judge and jury, would they feel the real reason you let the person go was due to their time off disability  or  was their performance  the real issue and  the timing of their  non-work injury requiring disability was   truly and without a doubt just secondary.........   in other words, if the person was not hurt or on disability, would you have still laid them off by today, regardless ???

The best I can do without engaging you as a client in this case is offer a few  web articles for you to read over.    Also time will tend to help clarify the best course of action.

I hope this helps somehow and best of luck to you.

Brian Phillips  

Human Resources

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Brian Phillips


Foreign and US university students -*PLEASE*- DO NOT waste your time asking for my opinions, comments or analysis of your homework questions. Homework questions are not answered and are rejected. I am happy to help answer questions asked by employees and employers regarding United States based state and Federal wage and hour, OT, Fair labor standards, FMLA, COBRA, Recruiting, Interviewing techniques, employee manuals, discipline, terminations/quits, unemployment, HRIS rollout, Employee Leasing or Staffing company cost analysis, day to day scenarios, work situations and more. Essentially a well rounded HR generalist who operates Harvis, Inc., a human resource consulting and service business based in Northeastern Pennsylvania "NEPA".


At Harvis, Inc., we provide Human Resource products, services and advice to small businesses that may not have the time or resources to hire a full time HR department. For larger companies with HR managers in place, we compliment their expertise to help with time consuming or time sensitive projects like updating policy manuals, screening and interviewing and more. We make workplaces better by becoming that 1/2 person they need to help handle HR responsibilities on a daily, weekly or monthly basis. Formerly responsible for all Human Resource activity for a staffing agency with 2,500 annual employees as well as an employee leasing / PEO business with 1,500 annual employees. Designed and implemented the HR structure to support hundreds of clients in excess of $ 500 million in payroll volume over career in Human Resources.

* President 2006- Harvis Inc. HR Services * President 2010-13 Business Association of the Greater Shickshinny Area - Shickshinny PA * President 2013- ShickshinnyForward Not for Profit Community Long Term Revitalization Organization and former member of varios Chambers of Commerce and HR Taskforce, former President of NBC Business Club 2 years

Bloomsburg University - 1993 BS Marketing, Bloomsburg Pennsylvania and Luzerne County Community College - 1991 Business Administration, Nanticoke Pennsylvania

Awards and Honors
* Better than average - 20/10 vision * Bestowed with an occasional "Thank You" from clients and their employees.

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