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Employee Fired for Calling in Sick

What are the legal protections to help you retain your job if you are sick?

Last week I received a query on my Workplace Ethics Advice blog from an employee who had missed two weeks of work because of a medical procedure with complications. She was fired from her job and wrote to me asking whether any recourse exists. I knew some about this issue, researched some more, and then came to the conclusion that little protection exists for anyone in her position.

Treating employees fairly is part of having an ethical workplace environment and helps to create an ethical corporate culture. If you call in sick one day because of a sore throat or just to be Ferris Bueller for that day, you should be protected notwithstanding the ethicality of playing Ferris for the day.

However, if you're out sick for a day you have no legal protection. The laws that protect you for illness only protect you if you have a serious medical condition or an illness relating to a disability. Doctor's note or no, if you live anywhere but Montana you're in an at-will state, meaning you can be fired for any reason or no reason at all. That includes being sick. In the case of the employee who wrote to me, she had missed two weeks so her condition would probably be considered serious. Still, she may not be protected.

In my research I found out that if your employer has fewer than 15 employees, you are not protected under the Americans with Disabilities Act, so even if you are out sick for a disability, such as dialysis, surgery or other necessary treatment, you have no protection unless your state or local laws cover smaller employers. If your employer has fewer than 50 employees within a 75 mile radius of your workplace, you won't be covered under the Family and Medical Leave Act. If you have a serious medical condition, you may be at risk of losing your job when you come back.

If your employer has at least 50 employees within a 75 mile radius of your workplace, if you've worked at least a year, and if you have worked at least 1,250 hours in the past year, you are entitled to up to 12 weeks of leave for a serious medical condition. However, "serious" is pretty limited. The Department of Labor explains "serious" this way:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Assuming your employer has at least 15 employees, they're covered under the Americans With Disabilities Act. If your illness related to a covered disability, then your employer must grant a reasonable accommodation for your disability. A reasonable accommodation could include time off for a disability-related illness or treatment. The EEOC explains the meaning of a covered disability this way:

A person can show that he or she has a disability in one of three ways:

  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
  • A person may be disabled if he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).

There’s much more information you should access if you find yourself a victim of being fired after a prolonged illness. From an ethical perspective, it seems cruel to fire an employee who was absent from work for no reason of their own doing, but for a medical condition. While I understand the need for an employer to keep the workplace humming along even when an employee is gone because of sickness, it seems to me that the employee should be promised some position upon return.

My perspective is to ask:  How would each of us want to be treated if we were the employee affected by illness for a prolonged period of time and then returned to work only to find out that our job had been given to someone else? It adds insult to injury and creates emotional and financial stress that can further harm the affected person’s life. That doesn’t seem right to me.

Blog posted by Steven Mintz, aka Ethics Sage, on September 18, 2013