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Can Employers Fire You For Being Sick?

Business man working at his desk sick with a cold and fever

No one wants to go to work while sick. In the past, many people felt obligated to do so–unless you were physically unable to make it to the office, work culture pressured you into showing up, even if you might make your co-workers ill. That mentality has certainly changed with the novel coronavirus pandemic. But is there a point when your caution and consideration for your co-workers can work against you? If you take too many sick days, can your employer fire you? If you’re an employer with a worker who is always sick, are you obligated to keep them on the payroll indefinitely? Continue reading to learn about worker protections pertaining to sickness, and call an Orange County labor law attorney for advice and representation concerning wrongful termination and other labor law issues.

Mandated Paid Sick Leave

California is an at-will employment state. That means that employers can terminate employees for almost any reason, or no reason at all, so long as that termination is not prohibited by contract or law. There are a number of causes for termination that are prohibited by law, including termination based on discrimination or for exercising certain protected rights.

Among other protections, California requires employers to offer paid sick leave. Employees earn sick leave through the number of hours that they work throughout the calendar year. If an employee has earned sick days, then they have the right to take those sick days without facing any consequences. It’s unlawful for an employer to terminate an employee for using accrued sick days.

FMLA Leave

Even if an employee has used up all of their sick leave, or they have not worked enough hours to accrue sick leave, they might have the right to take other protected leave. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) guarantee eligible employees the right to take up to 12 weeks of unpaid leave for specific reasons without fear of termination. Covered causes for leave include:

  • Serious health conditions, whether injury, illness or impairment
  • Caring for a family member with a serious health condition
  • Caring for a new child

Covered workers who take FMLA/CFRA leave cannot be terminated for taking time off. Employees who are fired while on medical or family leave may file a lawsuit for wrongful termination against their employer. Employees who exceed their allotted 12 weeks in a given calendar year are not guaranteed job protection.

Disability Discrimination

Federal and state laws that prohibit disability discrimination, such as the Americans with Disabilities Act (ADA), also provide workers with protection against termination. If a worker is unable to come into work because of an illness relating to their disability, they may be protected from termination. Employers are entitled to make reasonable accommodations for disabled employees in order to allow them to successfully perform their job duties. Requiring additional sick days to recover from disability-related illnesses may be considered a “reasonable accommodation.”

However, the ADA does not protect all disabled employees from termination. Employees can be terminated for reasons unrelated to the disability if they pose a health or safety risk to others in the workplace or if they are unable to meet legitimate requirements for the job even with reasonable accommodation. If an employee, for example, is too sick to ever work, employers are not required to keep them on staff forever–such an accommodation would not be considered “reasonable.”

Work-Related Illness

If a worker contracts an illness at work or due to the performance of work-related tasks, the employee is entitled to worker’s compensation. Workers’ comp laws also protect employees from termination after contracting a workplace illness or injury. The employee would, however, need to prove the injury was actually work-related.

Other Sick Days

Outside of the prescribed limitations, an employer can terminate an employee for excessive sick days. The law does not guarantee employment for all California workers; if an employee uses all accrued sick days, does not qualify for family or medical leave, and is not protected by disability laws or workers’ compensation laws, then an employee who takes too many days off can be fired.

Additionally, a worker can be terminated while on protected leave, so long as the termination is not for an unlawful reason–for example, they can be terminated for performance issues that predated the leave. A worker may, however, challenge the employer’s stated reason for termination in a wrongful termination lawsuit.

If you are an employee with wrongful termination or other employee rights concerns in Orange, Riverside, San Bernardino, Los Angeles, or San Diego counties, or a California employer dealing with employee rights allegations, employee contract disputes, or other employment law issues, contact an experienced, professional California employment law attorney at Coast Employment Law at 714-551-9930 for a free consultation.

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