subject: Have You Been Denied The Right To Return To Work? [print this page] Employment attorney San Diego receives dozens of phone calls a year from employees throughout California, who have been denied the right to return to work at the end of their approved leave periods. It is important for employees to first understand and review the situations in which an employee may lawfully be barred from returning to work.
According employment attorney Orange County, an employee may be denied return to work if a *fitness for duty*certification is requested but not provided. The employer must have a policy of requiring all employees out on approved leave (such as Family Medical Leave or California Family Rights Act). It may not be applied to just one or two employees that the company is trying to keep out. Also, any *fitness for duty* test must be conducted by a medical provider, not a non medical provider such as an occupational therapist. Finally, an employer may ask for re-certification every 30 days if an employee is out on intermittent or reduced schedule FMLA leave, if reasonable safety concerns exist regarding that employee's ability to perform duties, based on the condition for which leave was given.
Higher level, salaried employees may be denied reinstatement following leave if they are a "key employee" says employment attorney San Diego. The employer must show that re-instatement would result in substantial and grievous economic injury to the employer. The employer must--before the leave is taken--advise the key employee of their right to forget the leave or to return. A key employee is one who is in the top 10% of paid employees within 75 miles of the employee's work-site. This may apply to high level administrative, technical or salaried sales employees. In short, to anyone on salary earning in the top 10%. The injury must involve more than mere hardship or inconvenience to the employer but rather substantial long-term economic harm. A key employee is entitled to notice, which must be written. A failure to give notice in person or by certified mail will result in a denial of the employer's right to deny reinstatement even if substantial economic hardship results.
To see whether your case qualifies for a free initial consultation, contact an Orange County employment attorney to see whether your case qualifies for a free consultation.
