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Extended Disability Leave May Result in Termination

May 23, 1999

Q: My daughter was with her company for eight years. After she was on disability leave for six months, the company notified her by mail that she was terminated. Is that legal?

--J.W., Chatsworth

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A: It depends. There are three basic laws that apply to disability leave.

The first is the Family and Medical Leave Act. This applies to employers with 50 or more employees and provides for up to 12 weeks of leave a year for employees who have more than one year of service.

Under most circumstances it requires the employer to reinstate the employee at the end of the leave period, but such a requirement disappears if the employee is not able to return to work after 12 weeks.

The Americans with Disabilities Act requires that employees who meet that law's definition of "disabled" be "reasonably accommodated" by their employers, unless such an accommodation would constitute an "undue hardship."

Although short-term leaves might be required as an accommodation, indefinite leave is not required, and an employer has a better hardship argument as the time on leave increases. This law might apply here, however, if your daughter's company has allowed other employees to return to work after extended leaves.

Finally, if your daughter's condition is job-related, the workers' compensation laws would require that the employer provide leave until she can return to work or until it becomes apparent that she cannot ever return to her old job.

Such an employee on a job-related medical leave may be replaced by an employer where there is a business necessity to do so, but that employee retains preferential reinstatement rights when he or she is ready to return to work. The employer cannot terminate this employee, even if the leave period is extended.

Are you sure your daughter was actually terminated? Often after an employee has been out on leave for a while, the employer will send notification of the employee's right to COBRA insurance coverage.

This is perfectly legal, since COBRA, or the federal Consolidated Omnibus Budget Reconciliation Act, and the Family and Medical Leave Act allow employers to require employees to pay the cost of their health insurance when they are on a medical leave that exceeds 12 weeks. It might be that all your daughter has received is a COBRA notice.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Is Teacher Owed Pay for Extra Hours?

Q: I work as a substitute teacher for the Los Angeles Unified School District. One day we had a lock-down. We locked our doors and kept the children after school for 2 1/2 hours while armed police officers patrolled the school. We were not paid for those extra hours of service. District officials have frowned upon my suggestion that I be paid extra for this emergency.

--M.O., Los Angeles

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A: Nonexempt employees who work more than 40 hours a week are entitled to overtime compensation at 1 1/2 times their normal hourly rate. Workers who may be exempt from this rule include executives, managers and administrators. A union contract may provide an exemption and specify its own rules.

It's unclear from your question whether you are a member of the union and if that affects your compensation rights.

As a substitute teacher, you may not work a full eight hours five days a week. Unless your work for the week exceeds 40 hours, you would not normally receive overtime pay even if you were nonexempt.

If you are exempt and the employer paid you a salary, it shouldn't matter whether you work more or less than a specified number of hours. The sole determination is that you work enough hours to accomplish the task required.

You might ask district officials why you should not be paid for the emergency extra work. Ask them to cite written district rules or appropriate language in a union contract. Review the employee handbook if there is one.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Vacation, Sick Days Affect Overtime

Q: I work 40 hours a week, Monday through Friday, and am paid by the hour. If I use sick or vacation time as part of the 40-hour week, then work a few hours Saturday or Sunday, am I entitled to overtime?

If not, can I at least have the company restore the vacation or sick time equaling the hours that I worked over the weekend? Twice I was not allowed to charge overtime for weekend work because I had either been on vacation or had been out sick earlier the same week.

--M.H., Los Angeles

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A: Unfortunately, you are not entitled to overtime premiums or to credit to your sick or vacation pay accounts. Overtime laws require only that hourly employees receive overtime pay if they actually work more than 40 hours in a workweek. Vacation and sick time simply are not counted as hours worked for purposes of calculating overtime.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.

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