In many situations, an employer is free to fire an at-will employee who misses too much work; after all, attendance is a basic job requirement for most positions. However, there are some exceptions. If your absences are protected by the Family and Medical Leave Act, the Americans with Disabilities Act, workers' compensation laws, or state paid sick leave laws, your employer can't fire you because of them.
The Family And Medical Leave Act (FMLA)
The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks off in a 12-month period for the following reasons:
- to care for a new child
- because the employee is incapacitated by a serious health condition, or
- because the employee is needed to care for a family member with a serious health condition.
(Additional leave rights are available to those whose family members are called to active military duty or suffer serious injuries in the line of military duty.)
A serious health condition is an illness, injury, impairment, or condition that involves:
- inpatient care at a hospital, hospice, or residential medical care facility
- incapacity for more than three full calendar days with continuing treatment by a health care provider
- incapacity due to pregnancy or prenatal care
- incapacity or treatment for a chronic serious health condition
- permanent or long-term incapacity for a condition for which treatment may not be effective (such as a terminal illness), or
- absence for multiple treatments either for restorative surgery after an accident or injury or for a condition that would require an absence of more than three days if not treated.
Only employers with at least 50 employees have to abide by the FMLA. For these covered employers, it is illegal to fire or discipline an employee for taking leave that's protected by the FMLA. Employees have the right to be reinstated once their leave is over, with a few limited exceptions. So, if you were out sick for a serious health condition as defined by the FMLA, and your employer fired you because of it, you may have a legal claim for wrongful termination.
The Americans with Disabilities Act
If you are taking sick time for a condition that qualifies as a disability under the Americans with Disabilities Act (ADA), you may also be protected from termination. The ADA is a federal law that prohibits employers from discriminating against employees with disabilities: physical or mental impairments that substantially limit a major life activity or major bodily function. (For more information on whom the ADA protects and what counts as a disability, see Americans with Disabilities Act FAQ.)
Although the ADA doesn't explicitly grant employees the right to take time off, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. One such accommodation might be time off work, depending on the circumstances. Employers aren't required to provide a reasonable accommodation that would create an undue hardship: significant difficulty or expense for the employer, considering its size and resources.
Some courts have found that an employee who needs a significant amount of time off work isn't qualified for the job -- and, therefore, isn't entitled to the protections of the ADA. However, if your employer routinely provides leave for other purposes, you don't need much time off, or for some other reason your leave wouldn't pose an undue hardship on the employer, you may be protected by the ADA.
Workers' Compensation Laws
Most employers in most states are required to carry workers' compensation insurance, which provides reimbursement for medical bills and partial wage replacement to employees who are unable to work due to a work-related injury or illness. Workers' compensation is governed by state law, so the rules differ depending on where you work. Every state prohibits employers for firing or disciplining an employee who makes a workers' comp claim. However, states differ as to whether or not an employer can fire someone who is out with a workers' comp injury. Some states allow employers to terminate employment if they need to fill the position and can't wait any longer for the employee to recuperate; other states require employers to reinstate an employee who has been out on workers' comp leave.
State Sick Leave Laws
A growing number of states have passed laws that require employers to provide paid sick leave to employees. Connecticut, California, and Massachusetts are among the states that provide for mandated paid sick leave days. A handful of cities also have their own sick leave laws, including San Francisco, New York City, Seattle, Washington D.C., and Portland.
If you have accrued paid sick leave days under one of these policies, you may use your sick days without any negative consequences. In fact, it is illegal for your employer to retaliate against you for using sick leave.
Other State Laws
There are a variety of state laws that might also give you the right to take time off for health reasons -- and prohibit your employer from firing you because of it. For example, some states have family and medical leave laws, similar to the FMLA, that give employees the right to take time off. Some states require employers to give employees a certain amount of leave (and to reinstate them when the leave is over) for pregnancy and childbirth. In some states, an employee is entitled to a certain amount of time off work to deal with domestic violence issues.
Get Legal Help
As you can see, there are a number of laws that might protect you from being fired for taking sick leave. If your employer has fired you, disciplined you, or threatened to do either because you have been out sick, you should talk to a lawyer right away. An experienced employment lawyer can assess your claims and help you decide how to proceed. If you have been fired, a lawyer can help you negotiate a fair severance or file a legal claim against your employer, depending on what the best strategy is in your situation.