Can You Be Fired For Calling In Sick -- Even With A Doctor's Note?

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sick note miss workI recently received this question from a reader:

Q: I have missed about a week and half of work due to being really sick. I can barely talk and have no voice. Keep in mind here my job is a telesales rep. I call people all day. Are they legally able to fire me even though I have a doctor's note every day I missed?

People ask me this all the time. Can you really be fired for being out sick even though you have a doctor's note? One state, Connecticut, and four cities -- Seattle, Portland, San Francisco and Washington, D.C. -- have paid sick leave laws. A fifth city, Philadelphia, is voting on a measure Thursday, but if you don't live in any of these places, you could possibly be out of luck. It depends on how long you've been employed, how many employees your company has, and how sick you are. Here's what you need to know about your legal rights when you call in sick.

Missing one day: If you're out sick for a day with, say, a cold or something minor, you have zero legal protection. The laws that protect you for illness only protect you if you have a serious medical condition or an illness relating to a disability. Doctor's note or no, if you live anywhere but Montana you're in an at-will state, meaning you can be fired for any reason or no reason at all. That includes being sick. In this case, you missed a week and a half, so your condition is probably considered serious. But that's not the end of the story. You still might not be protected.

More: Survey: Craziest Excuses for Calling in Sick

Small employer: If your employer has fewer than 15 employees, you are not protected under the Americans With Disabilities Act, so even if you are out sick for a disability, such as chemo, surgery or other necessary treatment, you have no protection unless your state or local laws cover smaller employers. If your employer has fewer than 50 employees within a 75 mile radius of your workplace, you won't be covered under the Family and Medical Leave Act. If you have a serious medical condition, you may be at risk of losing your job when you come back.

Serious medical condition: If your employer has at least 50 employees within a 75 mile radius of your workplace, if you've worked at least a year, and if you have worked at least 1,250 hours in the past year, you are entitled to up to 12 weeks of leave for a serious medical condition. However, "serious" is pretty limited. The Department of Labor explains "serious" this way:
  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

In this case, you saw a doctor and were out for more than three days, so if you meet the other requirements of FMLA coverage, your employer can't fire you for missing work.

More: 8 Ways Employers Can Discriminate Against Workers - Legally

Disability: Assuming your employer has at least 15 employees, they're covered under the Americans With Disabilities Act. If your illness related to a covered disability, then your employer must grant a reasonable accommodation for your disability. A reasonable accommodation could include time off for a disability-related illness or treatment. The EEOC explains the meaning of a covered disability this way:
  • A person can show that he or she has a disability in one of three ways:
  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
  • A person may be disabled if he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).

In this situation, if the strep was caused or exacerbated by a disability that suppresses your immune system, such as HIV or cancer treatment, then your employer might have to accommodate you. Otherwise, strep is not a disability that would be covered under ADA.

In most cases, you can be fired for being absent even if you have a doctor's note. If your employer is threatening to fire you if you miss work, then show up on a stretcher if you have to. It beats losing your job.


If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.

Lunchtime Live: Ask Donna Ballman - Reasonable Accommodation




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