We have an employee who has been on disability for two months, we are not sure if she will ever come back. Do we have to offer her her old position or something comparable after 3 months? I think we have to wait three months to legally terminate her, is that correct? And how long are we responsible to pay for her health insurance? How do we legally terminate her if she does not give notice.
:confused:

It is highly dependent upon the size of the employer and the amount of time the employee has worked with the employer, etc. The summary of both the federal and the state laws on leave may be found at:
http://www.dol.gov/esa/programs/whd/state/fmla/ca.htm. This site also explains how long the job must be guaranteed, the benefits that must be offered, etc.

After reading that website, please let me know if you have any other questions.

I wrote: "We have an employee who has been on disability for two months, we are not sure if she will ever come back. Do we have to offer her her old position or something comparable after 3 months? I think we have to wait three months to legally terminate her, is that correct? And how long are we responsible to pay for her health insurance? How do we legally terminate her if she does not give notice."

It is highly dependent upon the size of the employer and the amount of time the employee has worked with the employer, etc. The summary of both the federal and the state laws on leave may be found at:
http://www.dol.gov/esa/programs/whd/state/fmla/ca.htm. This site also explains how long the job must be guaranteed, the benefits that must be offered, etc.

After reading that website, please let me know if you have any other questions.

There are only 30 employees in the company. The employee has worked at the company for only two months. Do we still have to hold her position after 3 months? Or can we legally terminate her because she has not worked many hours/months. How long are we responsible to pay for her health insurance? How do we legally terminate her if she does not give notice? I went to the link you suggested, but I still had trouble understanding it. :confused:

As it says on the website, you must hold her job if she "worked for Employer for at least 12 months - which need not be consecutive; worked at least 1,250 hours for Employer during 12 months preceding leave; and employed at Employer worksite with 50 or more Employees or within 75 miles of Employer worksites with a total of 50 or more Employees."

So, how long did she work for you before she went out on disability? Was it more than 12 months? Also, if so, in the year prior to her disability, did she work at least 1,250 hours? Has her time off under that type of leave been 12 weeks or less? Also, does the company have at least 50 employees working within 75 miles of the place where she worked? If she was offered leave, did she submit the paperwork required by the company?

If the answer to all of these questions is yes, she is eligible to have her job protected/guaranteed. In other words, the employer must offer her the same or a comparable job. Also, you must continue her health insurance benefits during that time.

If any of these questions is no, she is not eligible for protected job benefits. The employer can terminate immediately, if that is what the employer does with others who have been out for a similar period of time. (If the employer terminates her while it offers others an extended leave period, it may be found that it has discriminated against her on the basis of her disability, gender, etc.)

Does that explanation help you? I hope so. Because of the complexity of this issue, you are encouraged to consult with an employment attorney. Let me know if you have any other questions.

If she has only worked for you for 3 months, you do not have to hold the job for her. You can send her a letter, letting her know you are terminating her employment. Of course, I am assuming that you terminate everyone after a certain amount of time on leave. If you do not, you can not treat her differently just because she has a disability.

So, in other words, treat her like any other employee who is away from the office for the same period of time.