I Was Sent Home From Work Sick, Then Fired

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An AOL Jobs reader asks:

I was fired from my job that I held for 2 months. I came to work sick with a doctor's note stating I was contagious for the next 5 days. I had shingles. I was told to go home by my supervisor. I asked if it would affect my job in any way if I left and told them if so I would rather stay and work. I was told to punch out and go home. Upon return I was fired for excessive absences. The company counted every day I was off against me even though I offered to stay at work. Will I be able to collect unemployment? And wondering as well if this would fall under wrongful firing.

Since you worked there less than a year, you aren't protected by the Family and Medical Leave Act. That means that, in general, you can be fired for being out sick. For more on this, check out my article, Can You Be Fired For Calling In Sick – Even With A Doctor's Note?
Three states, Massachusetts, California and Connecticut, now have paid sick leave laws. If you're lucky enough to live in one of these states, the laws also protect you from being fired for exercising your right to paid sick leave. Many cities have also passed paid sick leave ordinances.

President Obama, in the State of the Union Address, has expanded medical leave for federal employees and urged Congress to pass the Healthy Families Act, a nationwide paid sick leave law. This law would also prohibit employers from interfering with employees who use paid sick leave they have earned.

OSHA requires employers to maintain a safe workplace, which includes not having employees present with infectious illnesses, which may mean your employer had a duty to send you home. However, I find nothing in the OSH Act that prevents your employer from firing you with a contagious illness once they send you home.

Had you been employed for a year or more, you might have been protected under the Family and Medical Leave Act, since this was a serious medical condition. Absent FMLA protection and if you aren't in a state or city with a paid sick leave requirement, the employer was probably allowed to fire you for being sick, even if they sent you home.

Does that make them jerks? Yes. Stupid boss behavior like this means the next contagious employee won't tell. They'll just come in and spread the disease. Hopefully they'll make a point of contaminating the boss. But was it illegal? Probably not.

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.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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