If you're one of the 43 million private sector workers who don't have access to paid sick leave, you may often hope for an illness to strike you Friday evening rather than Monday morning. In fact, more than 25 percent of full time workers and 75 percent of part time workers don't have a single paid sick day, often forcing them to show up to work sick or risk job termination. What are your legal options if you find yourself fired (or threatened with firing) for calling in sick to work? Read on to learn more about some situations in which firing an employee for being sick may be against the law.
When is it legal to fire someone for being sick?
Most states are "at will" employment states -- meaning that an employer can fire an employee at any time, for any reason (or no reason) at all, as long as the reason given for firing doesn't discriminate against the former employee on a protected characteristic. For example, an employer can legally fire an employee for showing up with purple hair one day, or for using profanity in front of a customer, but that employer can't fire the same employee because he or she is a certain religion or race.
Most minor illnesses won't be enough to get you covered under the Americans with Disabilities Act (ADA), which provides you with no legal protection if you're fired for calling in sick -- even if you're too ill to work for several days, and even if you have a doctor's note corroborating your illness. Unfortunately, you have little legal recourse if you're terminated for calling in sick with a cold or the flu.
When might this type of firing be illegal?
Fortunately, even absent paid sick leave, there are some job protections that may be available to you. If your employer has 15 or more employees, the ADA can come into play for more serious or long-term illnesses. Employers with more than 50 employees will be subject to the Family and Medical Leave Act (FMLA), which can require an employer to hold your job (or a comparable job) open for 12 weeks. If your injury or illness is sufficiently serious, your employer is covered by the ADA or FMLA, and you're fired well within the 3-month range, you may have the basis for a lawsuit. You'll want to consult an attorney before filing, even if you decide you want to represent yourself, just to ensure that you're aware of all your options and the potential fallout from each choice.
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