Can You Get Fired for Being Sick? By Gregory Thyberg on April 20, 2020

Male blowing his noseCalifornia’s at-will employment status allows employers to terminate employment without any notice and for just about any reason. Termination that results from excessive absences is legal in states of at-will employment, especially since attendance is essential to job performance in most cases.

Despite the flexibility allowed by at-will employment laws, employees are provided certain protections. Many employees wonder if they can be fired for being sick. Even though illness can lead to excessive absence, there are laws that protect sick employers from being fired. Employment law attorney Gregory Thyberg can help his Sacramento, CA, clients explore their legal options if they have been wrongfully terminated.

Sickness and Sick Leave

One of the first means of protection intended to prevent an employee from being fired for being ill is sick leave. California is one of many states that have laws to mandate paid sick leave. Sick leave is typically earned based on the number of hours an employee works, and can be accrued throughout the calendar year. Employees have the right to use any and all accrued sick leave without facing consequences, which includes termination. If an employee is fired for using earned sick leave, it falls under the category of wrongful termination.

Sickness and Family and Medical Leave Act

If an employee has used up all his or her sick time, or has not been in a job long enough to earn paid sick leave, they may be protected under the Family and Medical Leave Act, or FMLA. FMLA gives eligible employees the right to take 12 weeks of unpaid leave to address certain medical or family concerns, such as:

  • A serious health condition (including illness, injury, or impairment)
  • Caring for a family member with a serious health condition
  • Caring for a new child

As with sick leave, laws prohibit employees from being punished or fired for using FMLA. In fact, FMLA laws stipulate that the employee’s job should be protected while on leave. If our Sacramento clients return from FMLA leave to find that their job has been given away, and they are not offered another position that is similar in pay and rank, they can pursue a lawsuit.

Sickness and the Americans with Disabilities Act

Another law that may apply if an employee is fired for being sick is the Americans with Disabilities Act, or the ADA. The ADA makes it illegal to discriminate against employees with either physical or mental disabilities that alter their abilities or functions. Although ADA does not explicitly refer to sick time, a case of discrimination can be made if an employee is fired for taking sick time related to their disability.

What Are My Legal Options?

Those who are wrongfully terminated for taking legal sick time can file a lawsuit to sue for resulting losses, which may include lost pay, lost benefits, and emotional suffering. Individuals in the Sacramento area can work with attorney Gregory Thyberg to find out if their rights have been violated, and, if so, what type of financial compensation they may be due.

Contact Us

If you have been fired for being sick, you should consider filing a wrongful termination suit. To find out how Gregory Thyberg can assist you in getting financial compensation for your losses, send us a message online at your earliest convenience or call (916) 204-9173.

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Thyberg Law

Since 1981, Gregory A. Thyberg has been providing legal services to clients throughout Sacramento. With a focus on employment law, he can help you find a solution when facing discrimination, harassment, or other workplace injustices. Mr. Thyberg is affiliated with organizations like the:

  • California Bar Association
  • San Francisco Trial Lawyer’s Association

If you're experiencing unlawful discrimination in the workplace, request a consultation with Mr. Thyberg or call (916) 204-9173.

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