:confused:

We have an employee in CA who has been with our company for less than two months and then went on disability for a personal medical problem (the employee has now been on disability for three months with emotional problems). Our company is small (less than 50 people). We assist and care for developmentally disabled adults. We have had a substitute fill in, but now it looks like he will not be able to return and our client really needs someone permanent. We want his employment to end but want to know the best way how? Also, will he be able to collect unemployment insurance? This would really be a drag considering he barely worked for the company. Can we say in a letter that ...we accept his termination based on the fact he is uanble to perform the duties of his job. I'm trying to word it so we limit our unemployment liability and that the responsibility of ending the job is really his problem based on the fact that he worked less than two months and we are a small company.

That is a very difficult situation. You are right in being cautious because you don't want to be accused of discrimination. I'm not sure of the nature of his medical problems but if the emotional issues could be seen as a disability and you terminate him on the basis of those issues, you could be found in violation of discrimination laws. (If his issues are not a disability, but rather are illnesses that are controllable, etc., then you don't need to worry about discrimination on the basis of disability. For more information on disability discrimination, you can look at the following website: eeoc.gov.

You could terminate him without being seen as discriminatory IF you treat others without disabilities in the same way. If others who want several months off, such as someone a long trip, are terminated, I would recommend you do the same for him.

The complicating factor is that you are concerned about unemployment. If you terminate him and it is for reasons beyond his control, such as an illness, chances are that he will receive unemployment.

What is your leave policy? If you have a leave policy, have you offered it to him? If you are able to place him on leave, he won't be able to claim unemployment UNTIL he is ready to come back to work. (You'll want to make sure that he is told at the beginning of the leave that there is no guarantee of reemployment when he is available.) Keep in mind, though, that if you are treating him differently than others, you may be found guilty of discrimination (if his illness is indeed a disability).

I hope this helps. Let me know if you have any other questions.

;) What exactly does a leave policy mean and how does it work?

Also, can an employee really collect unemployment after only working for an employer for barely two months and then still on disability?

The employee may be eligible for unemployment. The issue is how much of it will be counted against you in the calculation of your unemployment experience rating.

A leave policy is a policy discussing when and why you would offer leaves and other terms and conditions involved with the leave. It is typically found in an employee handbook or management guide, etc.

Let me know if you have any other questions.