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San Jose, CA |

My employer asks me to stay home as they notice changes in me after a brain stroke. I do not get paid. They recently ask for a doctor note to let me go back to work. What are my rights to get back to work or get paid?

Attorney Answers 3

  1. It depends on what sort of changes they've noticed, and on what type of work you do.

    If your employer feels that you are a danger to yourself or others, it is entitled to require a doctor's release for you to return to work. The employer is not entitled to your diagnosis, but it is entitled to have a doctor's assurance that you are not a danger to yourself or to others in the workplace.

    Nor is the employer entitled to make generalized assumptions about your safety in the workplace. For example, it can't merely assume that because you're moving slower, or your speech is slurred, that somehow it's not safe for you to be there.

    On the other hand, if the employer's concerns are not safety-related, it has no right to send you home and require a doctor's return-to-work, if you've returned to work already. (This is a different situation than a return-to-work exam, which they are entitled to *prior* to your return to work) If they are noticing problems with your work performance, they must engage in a timely, good faith interactive process with you to determine if you need a reasonable accommodation to perform the primary functions of your job. They can even ask if you need restrictions.

    At the end of the day, though, it might be in your best interests just to go to the doctor and get a note either returning you to work, or stating the conditions under which you can return to work. It may be a pain in the neck, but it's also probably the quickest way to get you back there. If they still refuse to allow you to return, you may consider taking legal action at that time.

    I hope this information is helpful to you.

    Craig T. Byrnes

    Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

  2. You need to provide a return to work note to your employer from your doctor. If there are restrictions that the employer must deal with, the employer is required to engage in a timely good faith interactive process with you to discuss how you can do your job in light of the restrictions. The employer would then be required to provide you with a reasonable accommodation to allow you to perform the essential functions of your job, if any exist, as long as those accommodations do not constitute an undue hardship on the employer.

    Get the doctor's note, because the employer has no duty to act until you do.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

  3. Employers are limited in what medical information they can request from an employee. To get a better understanding of the employer's rights and your rights, please look at my Avvo guide on medical inquiries and examinations, and medical confidentiality under the ADA: An employer's rights to medical information is even more limited under California's Fair Employment and Housing Act (FEHA). Please look at my Avvo guide to the differences between the ADA and the FEHA:

    The FEHA applies to employers with 5 or more employees. The ADA applies to employers with 15 or more employees. Both laws require that the employee have a physical or mental impairment that limits one or more major life activities; for the ADA to apply, the limitation must be "substantial."

    Both laws prohibit an employer from firing or discriminating against an employee in any way because of disability, and both laws require an employer to provide reasonable accommodation to an employee with a disability if doing so will help the employee perform the essential functions (main parts) of his or her job.

    Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Please look at my Avvo guide on the ADA:, and my Avvo guide to the differences between the ADA and California's more generous FEHA:

    This is a complicated area of law and you may benefit from legal assistance, even though it may cost you a few thousand dollars. Yes, I know you are not getting paid at present and it may be hard to come up with the money to pay for an attorney. Still, a good attorney can end up gaining you far, far more than you pay in fees.

    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 Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope you can resolve your situation and wish you the best.

    @MikaSpencer * * * * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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