Skip to main content

Can an employer terminate an at-will employee while on disability if previously given repeated job performance warnings?

San Diego, CA |

We have less than 20 employees. Customers and morale are suffering considerably because our employees are having to cover a full time position during the absence. Employee has been out for over 1 month, and an anticipated return no earlier than another 1-2 more months. Employee has been given repeated job performance warnings, as early as just prior to the disability. Employee is hourly and signed a Handbook that clearly outlines "at will" employment. Can we terminate the employee for poor job performance during their disability leave and hire a replacement, while still maintaining compliance with the FMLA and any applicable California laws? Thank you.

+ Read More

Attorney answers 3


Of course, you can terminate an employee at your will or for poor performance. But do you really believe the employee and his lawyer are going to buy that? You have almost admitted in your post that his disability leave is a reason you want to fire him because of the employee morale his absence has caused.

This is a very high risk decision and there is no substitute for buying the advice of counsel after all of the facts, employee records and company policies have been reviewed. As a business owner, you should have counsel available to help make very complex legal decisions.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


There are two critical foundational issues here:
1. What is the risk tolerance of your business?
2. What will the documentary record re the employee at issue establish?

As to the first issue, you probably don't know that answer, but every business should, in conjunction with skilled and experienced counsel, work through that question and arrive at a position that will represent your equilibrium point. The results of that analysis will serve as a boundary that can guide and inform you a hundred times over in myriad matters and can save you from making inconsistent impulsive ad hoc decisions that will leave you chronically vulnerable to after the fact allegations.

As to the second issue, you cannot ethically start creating a documentary record of non-disability related reasons for terminating this employee. But you can review the existing record, in conjunction with legal counsel, and determine whether you have sufficient evidence of performance-related reasons to terminate. The record is what it is -- and no one here knows what it will establish. Be objective, but don't buy into hostage mentality. Better still, rely on experienced legal counsel to give you an objective assessment of the adequacy of the record to support a performance-based termination.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.


With less than 20 employees, FMLA is not a concern, but California's Fair Employment & Housing Act likely is. FEHA applies to companies with 5 or more employees and requires such employers to "reasonably accommodate" employees suffering from physical impairments that limit a major life function.

No law, including FEHA, limits an employer's ability to fire workers for poor performance. However, without adequate record of performance issues, you risk allegations that termination on such basis is a pretense for unlawful disability discrimination.

This is a circumstance in which you would greatly benefit from consultation with a local employment law attorney. There is no substitute for advice obtained in a confidential setting upon consideration of all relevant facts.

Good luck.

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.