Employee has not return to work an was given a dr. note from dermatologist to return she is being treated for a rash. she decides to go to a therapist because she is so upset about the rash that she claims she has mental stress now and can not work yet. Therapist gives employee a note stating she might be able to return July 1, 2014, She is employed at a daycare center and this position needs to be filled. Can she be terminated without the employer getting sued?
Employment / Labor Attorney
The answer to most employment law questions is "it depends." In your case, the employee's absences may be protected by the Family and Medical Leave Act (FMLA). However, there are several requirements that would need to be met before the employee would be covered. For example, the employer would be required to comply with the FMLA only if it had 75 employees at the work location at issue or within a 75 mile radius of that work location. Even if the FMLA applies to the employer, there are several requirements that would need to be met to determine whether the FMLA's protections applied to this particular employee. Below is a link to the Department of Labor's Fact Sheet regarding the FMLA. I also encourage you to consult in person with an employment lawyer to get a careful evaluation. Good luck. http://www.dol.gov/whd/regs/compliance/whdfs28.pdf
My answers to questions posted on AVVO are intended to provide general information only, and are not intended to be legal advice. Employment law issues typically require a careful case-by-case analysis. Consequently, if you feel that you need legal advice, I would encourage you to consult in person with an employment attorney in your area.