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Jan14

Letting Go of a Temporary Employee

My husband hired this young lady on a temporary basis to fill in for another employee while she was out. She worked for about 2 months then she went on a personal disability. Since she was hired on as a temporary basis, can we let her go so that we can hire someone else? This is not through a Temp Agency. We live in Calif.

Even temporary employees are covered under employment laws. There are a few federal and state laws to consider.

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide qualified employees of covered employers up to 12 workweeks of unpaid, job protected leave for specified family and medical reasons.

Covered employers under both the FMLA and CFRA include those who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. An eligible employee under both laws is one who has worked for their employer for at least 12 months and has worked for at least 1,250 hours over the previous 12 months.

In this scenario, the employee doesn’t meet the service criteria to be covered under either the FMLA or CFRA.

Whether the employee is covered under disability laws depends on the reason for her “personal disability.” Relevant laws include the federal Americans with Disabilities Act (ADA) and California’s Pregnancy Disability Leave (PDL).

The ADA requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense. Employers with 15 or more employees are covered under the ADA.

There is no all-inclusive list of disabilities covered under the ADA; thus, an individual assessment must be performed. The burden is placed on the employer to initiate an exchange of information needed to determine whether the ADA is applicable.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities or functions, has a record of such an impairment, or is regarded as having such an impairment. The employee would be considered a qualified individual with a disability if she meets legitimate skill, experience, education, or other requirements of the position, and can perform the essential functions of the position with or without reasonable accommodation.

If the employee’s condition is covered under the ADA then she is entitled to reasonable accommodations to perform her work duties. A reasonable accommodation may include a short term leave of absence. However, there is no requirement that employers provide never ending leaves of absence.

California’s PDL requires employers with 5 or more employees to provide up to 4 months of disability leave for a woman who is disabled due to pregnancy, childbirth, or a related medical condition. A woman who works for a covered employer is eligible for pregnancy disability leave regardless of the length of time she has worked for the employer.

Pregnancy leave is required only when a woman is actually disabled by her pregnancy, childbirth, or a related medical condition. This includes time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any related medical condition.

A woman who takes a pregnancy disability leave and returns within the four-month period is guaranteed the right to return to her same position or a comparable one if her same position is no longer available.

Keep in mind, an employment contract that specifically states the duration of the employee’s temporary placement may void job reinstatement rights.

HTH!

This entry was posted on Thursday, January 14th, 2016 at 8:04 pm and is filed under
Labor Laws, Termination.
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