Human Resource Blog

SDI Clarity for companies under 50 employees

	Termination
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Have an employee who is now on disability for up to 6 weeks. The individual is less than 6 months on the job, no earned benefits with a position in the sales department and was paid base salary plus earned commission up till last day worked.

Has not produced any documentation, has sent an email stating a desire to get back to work, but in all honesty - the business can not have a salesperson here one week, out the next. We suspect SDI was filed since the forms were requested from the HR person. Because surgery was involved, and not knowing exactly the doctors orders, we are not permitting this employee in the office until we know more, which has not been given. Classify as voluntary quit???

The company employs 6 full-time staff (including this position). Is it possible to terminate with the ability for this person to re-apply at the end of the disability? There is a company policy manual that did not get handed out at the time of hiring that does incorporate an at-will clause. Boy would that come in handy right about now.

We are in California. Is it o.k. to terminate by certified letter saying due to your illness/excessive absenteeism and the necessity for business to continue, we must hire a replacement.

Thanks.

This is a very touchy situation. California set severe limits on \\\”employment at will\\\” even when the employers has a signed handbook. This case is even more complex, because the handbook was not signed and returned. Because of those two factors, please check with an attorney specializing in labor law or the California Department of Industrial Relations before making any decision in this case.

You are correct not to allow the employee to work without a doctor\\\’s release. You are also within your rights to request any certification under the California family leave policy or FMLA that applies to this case. SDI and family leave are different issues. Simply because someone collects SDI does not guarantee that the person is eligible for, or on, family leave. In some cases, an employee qualifies for SDI but not for unpaid, job-protected leave. That\’s partly becasue SDI can last for up to 52 weeks, while family leave is usually shorter.

Under federal FMLA, the employee is not entitled to unpaid leave and could be terminated. The best way to do that would be to send a certified letter that if he doesn\\\’t return to work on July 14 (or another arbitrary date) he will be terminated. You are certainly free to rehire any terminated employee, by mutual agreement. Be cautious about putting an offer of rehire in the termination letter, however. It could be construed as a contract that guarantees him a job when he is recovered. Your wording — that he may apply for any open position at the end of his disability — sounds fine.