Many employees avoid taking time off from work even when they are sick out of concern that they may lose their jobs. If you’re worried about being fired because you’re sick, you are not alone. Unfortunately, that concern is often justified, and your worst fear can happen.
There are exceptions, but, in general, if you are in an employment-at-will state, your employer doesn’t need a reason to fire you.
However, not taking sick days when they are needed can have harmful consequences, for your own health and long-term productivity and for your colleagues' health.
To help you balance the risks involved when deciding to take time off, here is an overview of the policies surrounding who can and cannot be fired for calling in sick.
Federal, State, and Local Law
There are no federal legal requirements for paid sick leave. However, employees may be eligible for unpaid leave if they are covered by federal law that requires it. For example, employees with a disability may be eligible for leave under the Family and Medical Leave Act.
Some state and local governments have legislation that provides for paid sick time. In those locations, you can’t be fired for using sick leave that state law requires your employer to provide.
For example, California law says, “An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days….”
Check with your state department of labor for regulations in your location.
Can You Get Fired for Calling in Sick to Work?
In many states, employment is considered “at-will” unless a signed contract specifies other conditions. Employment at will means that you are legally free to quit without explanation at any time, and you can also be fired by your employer at any time without explanation.
One practical result of at-will employment is that your boss is free to fire you simply for being sick unless you have an individual or union contract in place that says otherwise (at least in most cases).
Your employer doesn’t have to tell you that your calling in sick is the reason. With employment-at-will, you don’t need to be given a reason. Fortunately, there are some important exceptions.
Americans with Disabilities Act
Employees with well-documented disabilities, as defined within the Americans with Disabilities Act (ADA), may be protected from firing due to an illness related to their disability. However, there are circumstances under which an employee can be terminated:
- The termination is unrelated to the disability
- The employee does not meet legitimate requirements for the job
- Because of the employee's disability, he or she poses a direct threat to health or safety in the workplace.
The ADA also requires employers to make other reasonable accommodations for disabled workers. The law is designed to ensure that qualified people can participate freely in the workplace, regardless of disability status.
In general, it is your responsibility to disclose any disability you want accommodation for. Your employer will have their own policies for how to make that disclosure and how to document your needs. If you need expanded sick leave through ADA, you must discuss the issue with your employer before taking leave.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) provides certain employees working for organizations with over 50 employees with up to 12 weeks off of work within any 12-month period.
Situations covered include pregnancy and caring for a newborn, a serious medical condition, caring for an immediate family member with a serious health problem, and arrangements related to an adoption.
You may be protected from firing due to work-related injury or illness under workers’ compensation laws.
If your job makes you ill or you have been injured on the job, your employer has to pay for your treatment and give you time to recover. The drawback is that in some cases, it may be difficult to prove your injury or illness is work-related.
Company Sick Leave Policies
Employers also have their own sick leave policies, since organizations are free to offer more generous leave than the law requires. Some employees are covered by employment agreements that provide rules for using sick leave and guidelines for what happens if an employee requests more than the allocated time off.
In most cases, and depending on company policy, employees are required to either call, email, or text to let their employer know they won't be in to work.
Eligibility may vary from company to company, so it's important to be aware of your employer's leave policies.
Be aware that while some employers may indeed fire sick employees unjustly, in most cases, you can improve your chances of having a job to come back to by only calling in sick when you actually are under the weather.
For example, if you have a long history of calling in “sick” on Mondays, your boss may be less likely to believe you when you really are ill.
If you have an unusual medical situation, consider discussing the matter with your supervisor proactively. You may be able to work something out before you even need to call in sick.
The Best Way to Call in Sick
There are ways you can mitigate the potential repercussions of calling in sick, but be diligent about keeping your manager informed. If you’re a “no call, no show,” you’re much more likely to get fired than someone who has emailed or called in to let their boss know they are ill and won’t be able to work.
Company policy may stipulate how you should provide notification when you’re not coming in to work. For some companies, an email excuse is acceptable. At others, you may have to call in to let your manager know you won’t be in. If you need to provide formal notification, use these sickness excuse letter samples as a starting point for your own letter.
Know Your Rights
Check with your state department of labor to determine whether there are state laws that may give you additional rights. Research federal laws too, since there may be other circumstances that impact your situation, and understand the policies of your own employer.
Be proactive: do not wait until you are sick to learn your rights. Remember that legal protections and company policies are no guarantee that your employer will not fire you for calling in sick (possibly under the guise of a layoff or other excuse).
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.