The last thing you want to do when you’re sick is go to work (for your own sake and for your coworkers’). That’s what sick days are for—and missing work every once in a while because you’ve come down with a nasty case of the flu, you catch a stomach bug, or you’re just feeling under the weather shouldn’t put your job in jeopardy.
But what if you get sick more than once in a while? For example, what if you get diagnosed with a serious health condition that requires you to stay home to recover for an extended period of time? Or what if you have bad luck and catch one cold, flu, or bug after another—and end up spending the better part of a month at home instead of at work? Can that kind of absenteeism get you fired—even if you’re genuinely ill?
Or, in other words, can you get fired for being sick too much?
Understanding at-will employment—and how it relates to being fired for being sick
At-will employment means that an employer can fire their employees for any reason (hence the “at will” title). They can fire you for any reason or for no reason—and, if you’re an at-will employee, you can quit your job for any reason or no reason.
So, if you’re an at-will employee and your boss decides you’ve called in sick too much, they have every right to fire you—and they also don’t have to tell you that your illness (or excessive absences because of that illness) had anything to do with it.
That being said, there are exceptions to every rule—including at-will employment. There are situations where your employer is not legally allowed to fire you for missing work due to illness or being sick “too much.”
There is no permanent federal law in place that requires employers to provide paid sick leave. There are, however, many state laws and local laws that do—and if that’s the case, your employer can’t fire you for taking the sick leave you’re legally entitled to (even if they consider your absences “excessive” or “being sick too much”).
Family and Medical Leave Act
Not all employees are covered under the Family and Medical Leave Act (FMLA)—but if you are, eligible employees have the right to take off up to 12 weeks in a 12-month period (commonly referred to as FMLA leave) for a number of covered reasons, including:
- Taking care of a new child
- Caring for an immediate family member with a serious medical condition
- Serious illness (for example, an illness requiring inpatient care; incapacity due to pregnancy, prenatal care, or a condition that requires continuing treatment from a health care provider; or a serious health condition, like a terminal illness)
If you’re covered under the Family and Medical Leave Act, you can take up to 12 weeks off to deal with your illness—and your employer legally can’t fire you for taking said medical leave.
Americans with Disabilities Act
If you’re employed in the United States and have a disability, the Americans with Disabilities Act (ADA) offers you certain protections—and that may include protecting you from being terminated due to an illness related to your disability. Under the ADA, employers are required to make reasonable accommodations for employees with disabilities to successfully fulfill their job requirements. And if your disability is linked to an illness that causes you to need more sick time off than usual, allowing you that time off could potentially be considered a “reasonable accommodation.”
While the ADA offers certain protections, it’s important to note that having a disability doesn’t protect you from being fired in general; according to the Department of Labor, there are three circumstances in which an employer can fire an employee with a disability:
- The termination is unrelated to the disability
- The employee does not meet legitimate requirements for the job, such as performance or production standards, with or without a reasonable accommodation
- Because of the employee's disability, he or she poses a direct threat to health or safety in the workplace.
So, if you’ve been calling in sick a lot—but the illness has nothing to do with your disability—your employer could still have grounds for firing you (since the termination would be unrelated to the disability). Also, your employer could argue that a serious illness that causes you to miss a significant amount of time at work doesn’t meet the requirements for the job—in which case, they could also have grounds to let you go.
Bottom line? If you have a disability that causes you to miss work or need an extended sick leave, you might be protected from termination under the ADA.
Work-Related Illness or Injury
If the reason you’re calling in sick is that you became ill or were injured at work (for example, if there was toxic mold at your office that gave you a serious respiratory condition), you’re protected from being fired by workers’ compensation laws. And not only that, but legally, your employer is required to cover medical expenses and provide wage replacement benefits.
Just keep in mind that, in certain situations, it can be challenging to prove that your illness is a direct result of your job, employer, and/or place of work. And if you can’t prove it, you might not be entitled to workers’ compensation—and your employer may be able to fire you for excessive absenteeism.
If you’re concerned you may be (or have already been) unjustly fired for being sick, get in touch with an employment lawyer
Clearly, there are a lot of gray areas when it comes to your employer being able to fire you for being sick too much. But, if you’re concerned that you may be fired for taking sick leave you’re legally entitled to—or if you’ve already been fired—it’s important to seek legal advice. An employment attorney can help you navigate all the relevant leave laws to determine if your employer has (or had) a legal right to fire you—and if they don’t (or didn’t), they can help you determine the next best steps.