After calling in sick for three days, I'm being forced to resign or sign a new offer letter with a significant pay cut by being put on unpaid admin leave?? Is this legal especially when I have 165 hours of pto saved up?

After calling in sick for three days, I'm being forced to resign or sign a new offer letter with a significant pay cut by being put on unpaid admin leave?? I am an exempt employee and I have 165 hrs of pto saved up?

1 answer  |  asked Jun 16, 2017 09:09 AM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
It is very possible your employer is violating the law, but it depends on the facts (as all legal questions do). There are various sources of POTENTIAL protection related to your medical status.

First, you may be protected by California's Paid Sick Leave law. You must check with an attorney to be sure this law applies to your situation. If it does, then, the law generally provides that if an employee has accrued sick leave available, the employer may not disipline the employee for using that leave:

"An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article."
(Lab. Code § 246.5, subd. (c)(1).)

Second, if the medical condition that resulted in your need for sick leave is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and also on the differences between the ADA and California’s more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.

Third, there is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you, a child, a spouse or a parent, have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.

Please look at my guide to the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: http://www.thespencerlawfirm.com/tslf-fmla.php. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. You can find a workers' compensation attorney on the California Applicant Attorneys Association (CAAA) web site: https://www.caaa.org. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”

Your rights under each of these laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted by Marilynn Mika Spencer  |  Jun 27, 2017 1:03 PM [EST]

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