Do we have to keep job open for employee with cancer? 06-04-2008

We have 8 employees. One of them has been with us 9 months. Since she started I have loaned her money, have paid her for days she has not been here (numerous) over the last 9 mos, and have went above and beyond to accommodate her personal issues. She is 61 and two months ago found out she has cancer, we have been working with her for the last two months, days off etc. Now she has been out for the last two and a half weeks and doesn't look like she will be coming back any time soon. I have told her she should file for disability etc. She refuses. She keeps telling us to keep her job, unfortunately her job was one that was very important/crucial to our business, and we could not keep it open for her as we could not operate without someone in her place. To train someone to replace her is extremely costly to my office and will take weeks.

This last week we hired a girl and are training her to do this job position. I am not sure how to go about telling her we have had to hire someone to fill her position, and if she comes back she cannot go back into her past job description, I'm not sure at this point I would have a place for her, if I did have something it would definitely not be for the pay she was making, if at all. How do I proceed? Please help!

Rita Risser Replies:

Even though you have only 8 employees, the California Fair Employment Act applies to you. You cannot discriminate on the basis of age, medical condition or disability. However, because you are a small employer your duty to reasonably accommodate is less than a large company's duty.

This is a hard case because you have a history with this employee of perhaps taking advantage of you to begin with. Now whatever you do will look like discrimination.

The safest thing to do is not to hire a permanent replacement for this person. You should have hired someone as a temp. Now that you've done what you've done, you need to meet with a local attorney who specializes in employment law to map out a strategy for responding. It may be possible to do what you want to do legally, but even if it's legal, it still may result in a lawsuit.

Good luck.

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