Were You Fired for Being Out Sick? You May Have an Unfair Termination Case
If you have a severe disability, the Americans with Disabilities Act (ADA) protects you at work, and prevents you from being fired so long as reasonable accommodations to your job can be made. But what about “just being sick?”
In the Middle
The reality is that being sick doesn’t put us out of work for a long time, the way, say, a disability, illness, or major accident might. But it may put you out of work just long enough for your boss to get annoyed, and fire you or let you go.
So that puts sickness in a “gray area,” not long term or severe or permanent enough to be protected by the ADA, but long enough that a boss could get upset.
The Laws That Protect Workers
Thankfully, laws like the family medical Leave Act (FMLA) do protect you in this situation. Not only does the FMLA protect you from being punished for, or retaliated against, for being out sick, but it even allows you time to be home to take care of a sick family member. So long as your company has 50 or more employers, and you have worked for a year (working 1250 hours), you are covered by the FMLA.
The California version of the FMLA, protects workers so long as their employers have 5 or more employees.
After the FMLA provided time off of work has been exhausted, you could be fired for being out sick, legally. However, if you are out of work for that long, you may likely have an illness or disability where the ADA may come into play, and protect you—your sickness is no longer just a sickness, but a long term disability.
You also have legal sick leave and are entitled to one hour of sick leave, for every 30 hours you work for an employer. You cannot be fired for using this accrued leave because you are sick.
Many employees may also be protected by collective bargaining agreements through their unions, which may also provide extended leave times, or at least, protections from being fired for sickness.
Just a Pretext?
Sometimes, employers will use your sickness as a pretense or pretext for discrimination or illegal harassment. In other words, they may claim that you are being fired for being out too long because you’re sick—but really, they don’t want you there because they are discriminating against you, or retaliating against you for doing something you are legally allowed to do.
Even if it is legal to fire you for being sick in your particular situation—all employees must still be treated fairly without discrimination.
So, for example, if a male worker is out sick consistently and keeps his job, and a female worker misses 3 days and is fired for being sick, that could be an indication of unfair and illegal discriminatory practices in the workplace.
Were you wrongfully terminated for being sick, injured or disabled? Contact the San Jose unfair termination and employment attorneys at the Costanzo Law Firm today for help.
Sources:
dir.ca.gov/dlse/paid_sick_leave.htm
edd.ca.gov/en/disability/faqs-fmla-cfra/
