Rights and Unpaid Work Leave

Q: A current employee whom I supervise is going through some hard times because of a dreadful illness in her family. As a result, she was granted limited stress leave to have time to take care of these family issues.

I need her back at work; temporary help has not been satisfactory. Her leave should end soon, and I would like her to return to work then.

If she is unable to return, I would like to replace her instead of allowing another leave. What are her legal rights? How should I approach her to ask her what her intentions are?

--A.G., Encino

*

A: It depends on a number of factors, such as the length of time the employee has worked for the company, the number of employees the employer has, how long the employee has been on leave, and whether the employer has a policy or practice of granting such leaves and later reinstating the employee in the job.

As a general rule, under the federal or state family and medical leave laws, the employee may have a right to take up to 12 weeks of unpaid leave per year, if the employee has worked at least 1,250 hours in the last 12 months--and if the employer employs 50 or more workers within a 75-mile radius of the place where the employee works.

When one of these conditions is not met, if the employer has a policy or practice of permitting such leaves, the employee may still be able to argue that he or she had the right to expect that they would be granted the same type of leave as other employees or that the employee was discriminated against because of her sex, race, national origin or on some other impermissible basis.

Because the leave laws are quite complex, I recommend that you speak to the head of personnel at your company about these issues or contact an employment attorney to assist you in determining whether the employee must be permitted additional leave.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or, e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.

More on Overtime

* Times on Demand has prepared three pamphlets based on the Shop Talk column. They are answers to readers’ most-asked questions on overtime; unemployment insurance, terminations and medical leave; and job benefits. To order, call (800) 788-8804. Each pamphlet costs $5.41, plus 50 cents delivery. Please allow two to three weeks for mail delivery.