This answer should not be construed to create any attorney-client relationship. The consequences of doing this incorrectly could cost you many tens or even hundreds of thousands of dollars. This is not the kind of thing you want to engage in based on short answers received on a public internet site. Thus, it is critically important that you seek competent legal advice from an employment attorney to share all of the specifics of this situation with him or her and to then act with precision in the manner advised by that attorney. Your problem will be that even if you have the legal right to dismiss this employee, it looks like you are dismissing her because of a disabling condition. An employee is not allowed to simply be a no show or show up at any time they wish and then fall back on the "I was sick" excuse unless flexibility with their schedule is an agreed reasonable accommodation. There are various laws that COULD make terminating a person for taking medically excused time off an unlawful act, but not in all cases. MoreĪssuming your employee is employed "at will" you are allowed to terminate the employee for any reason or even no reason at all, as long as you are not terminating the employee for an unlawful reason. You should seek an attorney for a review of your specific facts and documents. Likewise it does not create an attorney-client relationship. This answer is a general interpretation of the law and is not fact specific to your case. It helps to document all absences, warnings, and how this employee missing work is impacting your business. If you have 50 or more employees, the employee in question might also be protected by the Family Medical Leave Act. Undue hardship is judged on a case by case basis, but the question boils down to whether you are suffering "significant difficulty or expense." Under FEHA, you need to engage in a good faith interactive process with the employee to determine how you might be able to accommodate their medical condition before letting them go. This means allowing the employee to miss work to the extent that such absences do not impose an undue hardship on your business. However, if you have 5 or more employees and the employee in question is calling in sick due to a disability (a medical condition which "impairs a major life function"), CA's Fair Employment & Housing Act imposes a duty to reasonably accommodate the employee. Employment is "at will" absent an agreement to the contrary, so an employee in this circumstance can be terminated without notice or warning. Regarding your question, no law protects an employee who calls in sick for an ordinary cold, flu or other minor illness. It's a business expense that you can write off and will likely save you thousands in avoided legal disputes. I strongly urge you to retain a local attorney for advice on matters like this in the future.
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