Q: Can we terminate and employee while on medical leave? He did not disclose his surgery plans when asked about availabili

A: A public forum like this is a very bad place to get the confidential advice you seek. This needs to be done in a confidential consultation with an attorney who normally represents employers. That is especially true if you have a litigious employee being affected.

There are some things you could do short of terminating the employee that should be considered. There are other things you can to that might eliminate the risk of costly and time-consuming litigation. Confidentially discuss and consider those things with an employer-side attorney.

Good luck to you.

A: I understand your frustration with the situation, but terminating an employee while they are on medical leave can be very risky from a legal perspective, even in an at-will employment state like California. Here are a few important considerations:

1. Family and Medical Leave Act (FMLA): If your company has 50 or more employees, the employee may be protected under FMLA, which provides up to 12 weeks of unpaid leave for serious health conditions. However, FMLA eligibility requires the employee to have worked for at least 12 months and 1,250 hours.

2. California Family Rights Act (CFRA): Similar to FMLA, CFRA provides up to 12 weeks of unpaid leave for serious health conditions. The eligibility criteria are the same as FMLA.

3. Americans with Disabilities Act (ADA): If the employee's condition qualifies as a disability under the ADA, you may be required to provide reasonable accommodations, which could include extended leave.

4. Retaliation and Discrimination: Terminating an employee because they took medical leave could be viewed as retaliation or discrimination based on their health condition, which is illegal.

Given the risks, it's generally advisable not to terminate an employee while they are on medical leave. Instead, consider the following:

1. Engage in an interactive process with the employee to determine if there are any accommodations that could allow them to return to work sooner.

2. If the employee's absence creates an undue hardship for your business, consult with an employment law attorney to discuss your options.

3. Document all communications with the employee regarding their leave and any accommodations discussed.

Remember, while California is an at-will state, there are still protections in place for employees taking medical leave. It's critical to proceed cautiously and seek legal advice before making any decisions that could expose your company to legal risk.