Legal Question in Employment Law in California

Great question.

First, you do NOT have a duty to keep the position open indefinitely. How long you should keep the position open depends on the severity of the injury of an employee and on the size/resources of your company. The larger and the more financially robust the company is, the stricter your obligation will be under the law.

In this case, if you really want to replace an employee, you should focus at this time on documenting very well your attempts to get a hold of an employee and the employee's lack of responsiveness. I would give it 6 months and then hire someone else. Of course, there is a possibility that the employee will come back and try to sue for disability discrimination, but his chances of prevailing in that case will be very low. Also, you might consider later, if the employee comes back, to place him on a different position or perhaps resolve issues through a severance pay and amicable separation.

But again, documenting multiple phone calls, letters and e-mails to an employee and lack of response to those over a long period of time will be very helpful in proving your case if it's necessary in the future.

Be aware, however, that an employee might be on vacation, he might have moved, or might be temporarily unavailable for some other reason, and that's why you should take some time before separation.

Also, make sure that you send a termination letter, when you decide to terminate that employee, so that statute of limitations starts running. Otherwise, the employee will have a much longer time during which he can sue, if he had no way of knowing that he was terminated.

Thanks,

Arkady Itkin

Sacramento & San Francisco Employment Lawyer