Can you get fired for using sick time?

Under California employment law, an employer cannot deny an employee the right to take sick leave. It is illegal for a California employer to terminate an employee for using sick leave that is accrued and entitled to use.

We all come down with something from time to time and need to take a day off from work. Some employees can proudly say they rarely get sick, while other individuals are unlucky and get sick multiple times per winter season.

However, sometimes employees grow ill and wonder if their employers can fire them for using too much of their sick time.

Realistically, all workers become sick and must take time off at some point during their careers. Research tells us that over 55% of workers in the U.S. take sick time off annually.

However, America does not have federal laws requiring companies to offer paid sick leave. Companies in the U.S., however, must offer unpaid leave to workers for medical reasons. In addition, many states, including California, have created statewide policies that help workers deal with being ill and make it possible for employees to take sick time off without being penalized.

Whether workers can be fired for using sick time is complex and cannot be answered easily. However, in this article, we will tell you everything you need to know about the idea of being laid off for using sick time at work.

Are Sick Employees Protected Under Federal Law?

Many people are surprised to find out that no federal law in the U.S. shields sick individuals from being fired. No law exists to provide ill people with leave, either.

The lack of federal law means that individuals must rely on other laws for protection when they are sick. For example, in the U.S., most employment is categorized as “at-will,” meaning that workers can be fired for any reason at any time. The caveat is that the reason for the firing cannot violate the law.

Title VII of the Civil Right Act makes it illegal for employers to fire employees for:

Disability
Sex
Sexual orientation
National origin
Genetic information
Religion
Gender identity
Race
Marital status
Ethnicity
Age
Pregnancy

Additional workplace protections also exist, which include:

Employees cannot be harassed in the workplace
Employees cannot be placed in a hostile work environment

As we will discuss, some states provide additional protections. However, in terms of sick leave, we recommend that individuals comply with their company’s specific policies. By adhering to business rules, many employees can avoid further complications.

What Happens When Individuals Must Call in Sick?

It is only natural that workers must call into work sick every so often. Whether it is because they are too sick to get out of bed or because they do not want to infect others, individuals calling into work sick is not a new concept.

Again, federal law does not require that businesses provide sick days. However, a growing number of states are passing sick leave laws. Additionally, in some states, laws have been enacted by the cities themselves, including Pittsburgh and Philadelphia.

California is one state that has unique, sick leave laws. Let’s go over those now.

What Are California’s Sick Leave Laws?

California is an at-will employment state, similar to many others. However, California does afford its employees some unique protections.

When employees use the sick time they have collected and are entitled to, their employer cannot fire them for using it. However, there have been cases in which employers fired employees for using sick time, and they filed successful lawsuits against their employers.

In 2014, California’s Healthy Workplaces Healthy Family Act provided all workers who have been with a company for over 30 days a year a segment of sick leave.

Additionally, workers in California can take paid sick leave for themselves or others, including their children, parents, grandchildren, spouses, grandparents, or domestic partners.

If California employees must take care of themselves because of an affliction or need to take care of family members, they are also allowed to take paid sick leave. Usually, these situations involve diagnostic care or patients that need treatment for pre-existing ailments.

Regardless of California’s laws, it is important to remember that workers must also adhere to company policy. As new laws emerge in different states, many companies must update and rewrite their regulations regarding sick time. When employees sign on with a company, there is normally information about the business’ sick time rules in the employee handbook or a similar document.

Sick leave laws usually involve job protection, too. Therefore, if an employee takes sick time and is fired for that or penalized, it may fall under wrongful termination or harassment.

Sometimes, companies will lay off employees because they are sick and then justify the firing by saying it reflects other elements. For example, an employer might fire a worker who is constantly ill and using their sick time but fib and say that the firing is based on job performance.

When such an instance occurs, the worker should immediately contact a qualified attorney. Most lawyers recommend a wrongful termination lawsuit when employers lie about why they are firing people.

Sometimes, valuable, hardworking employees who become sick are suddenly fired. However, when employees have no record of problems or negative performances and their bosses fire them for falling ill, the workers have a credible case against the employer. It is illegal for an employer to fire a worker for falling ill, regardless of how many days they take off.

Often, when an employer provides a strange or untrue reason to justify a worker’s firing, they are in the wrong. Workers need to contact a business lawyer as soon as possible in these situations.

What Are the Specifics of California’s Sick Leave Laws?

In 2015, all companies were required to abide by new paid sick leave regulations. These guidelines say that:

All workers who work for at least 30 days per year can collect sick days. They must have worked for the company for at least 90 days.

In rare scenarios, workers cannot collect paid sick leave. For example, workers under collective bargaining agreements cannot sometimes collect paid sick leave.

Workers must collect one hour of sick leave for every 30 hours they work. Businesses can stop paid sick leave at six work days or 48 hours.

Companies can also limit the number of sick leave hours to 24 per year.

Unused sick leave (paid) carries over annually.

Workers can use paid sick leave for their issues or those of family members.

Employers must promote their sick leave policies with posters or similar office advertisements.

Employers are entitled to use their sick leave policies, but the policy must abide by the state law’s minimum regulations.

The business’ sick leave rules must be visible to workers.

When workers are fired or face retaliation for being ill, they can bring a legal claim against the business.

Can Individuals Be Fired for Calling in Sick Numerous Times?

Calling in sick too many times can result in employees being fired. Whether this policy is legal depends on the state or city protections in the worker’s jurisdiction.

Businesses may justify firing an employee who calls in sick often by saying that the worker was not fulfilling their job applications.

Often, employees who call in sick repeatedly cannot perform their jobs, and their work performance suffers.

Also, some employees take advantage of and use up all of their sick leave protections. Depending on their state, they may be able to appeal their firing or pursue legal action. However, workers need to know that no one can take sick time repeatedly without penalties or at least questions from their employer.

What Is the Americans with Disabilities Act (ADA)?

The ADA is a federal law that protects people with disabilities who are employees. For example, employees are sometimes classified as disabled when they are constantly sick.

There are three classifications for being disabled in the workplace:

An individual may be disabled if they have a physical or mental condition that limits activity (such as walking or learning)
An individual might be considered disabled if they possess a physical or mental impairment that is both major and permanent
An individual may be considered disabled if they have a history of disease, disorder, or affliction, such as cancer, for example

When individuals have routine sicknesses, even if they are reoccurring, these are not normally covered by the ADA. However, sometimes disabilities lead to sickness, so it makes sense to consult a doctor about the root of the problem.

Speaking with a qualified attorney at this juncture may also be intelligent, as they can advise you on when and how to talk to your employer.

When individuals do disclose their disabilities, they should not lose their jobs. Employers who fire employees simply for being disabled violate the law.

If an employee is laid off for being disabled, they should contact a lawyer immediately because they have a clear path to a lawsuit against their company.

After employers are aware of their employee’s disabilities, they normally accept the reality of the situation, and the worker can request reasonable accommodations. Accommodations in the office vary but normally include things such as:

Occasional leave from work as needed
Modifying the work schedule based on the disability or doctor’s visits

What is the Family and Medical Leave Act?

The federal Family and Medical Leave Act (FMLA) allows employees to take 12 weeks off from work for one year. This leave is based on the worker’s proven and serious health condition.

When employees have serious health conditions that complicate their lives, impact their schedules, and make life difficult, they should consult the FMLA. These workers may be able to take protected leave.

In this case, discussing the matter with one’s employer is essential. FMLA is a job-protected act, and when employers balk at giving up sick leave under the FMLA, a retaliation claim is often the next step.

When workers cannot get their rightful FMLA to leave their company, they should immediately contact an experienced attorney.

Lastly, an individual can also use FMLA leave if their family member is very ill. However, ensure that the affliction qualifies before approaching one’s employer about leave due to a sick family member.

Is Being Fired for Using Sick Time Legal?

As we have said, the question of whether employers can terminate workers simply for using sick time is complex.

When businesses fire workers for getting sick, many workers file lawsuits against the business. Employers are increasingly aware of the effectiveness of these lawsuits, especially those on behalf of reputable, hardworking employees.

If an employee asks for FMLA leave and can back up their claims with their doctor’s support, and the company denies the claim for leave, the worker’s next move may also be a lawsuit. In this case, a lawyer will probably cite retaliation, interference, or a similar act by the employer.

However, these cases grow even more complicated for employers, employees, and attorneys because of the differences between state and federal laws and the variance in sick leave policies created by different businesses.

Most employers know that firing a worker for being sick or taking sick leave creates instant problems. However, some businesses are only driven by profits and make poor decisions.

When an employee calls in sick and is subsequently fired, they should contact an employment attorney for legal advice. Workers in every state, not just California, should be informed about the company, state, and federal policies. Employees who are taken advantage of by their employers regarding sick time should not be afraid to take legal action against them.

How Can Nakase Wade Help Employees Who Get Fired for Using Sick Time?

Typically, companies are forbidden from penalizing workers for using paid sick time they have collected. In California, employers must not deny workers the right to take sick leave. Employers also cannot retaliate against, threaten, suspend, or terminate a worker for using their sick leave.

However, some employers in California try to bend the rules, and these cases quickly become complicated. At Nakase Wade, our goal is to protect California employees from being penalized or fired for using the sick time they deserve and receive under state law.

Our California business lawyers and corporate attorneys realize that sick time cases are complicated for employees and employers. Therefore, depending on the circumstances of the firing or the amount of sick leave used, there are many different strategies our team may recommend.

As always, our goal at Nakase Wade is to protect our clients’ rights. If you are struggling with issues regarding sick time in California and need help, advice, or legal representation, contact us for a free consultation today.

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