Employee Fails to Return From Leave – Be Cautious Before Termination

February 09, 2017  |  From HRCalifornia Extra

Imagine this scenario:

An employee with a history of performance issues is suspended for three days. She then takes a one-week medical leave immediately after her suspension. The medical leave ends, but she doesn’t come back to work.

There is a dispute about whether she told you she might need more time off following the one week, and you don’t think she is asking for more leave. Your policy is that five days of unexcused absences is considered a voluntary resignation.

Should you:

  1. Tell her that she no longer works for you?
  2. Or try to get more information about why she continues to be absent before making a decision to terminate her employment?

When presented with a similar scenario in a lawsuit filed by a former employee against her employer, a California Court of Appeal voted for option number two.

Under the California Family Rights Act (CFRA), an employer bears the burden to communicate with an employee if the employer needs more information regarding the employee’s leave request. Moreover, employers should give employees a “reasonable” amount of time to request leave and to provide supporting documentation (Bareno v. San Diego Community College Dist, 7 Cal.App.5th 546 (2017)).​

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