Being dismissed for illness during a probationary period is a common concern for new employees, causing significant anxiety. The answer is complex, depending heavily on the interplay between specific employment laws and the policies established by the employer. A probationary period, often viewed as a time of greater vulnerability, typically does not grant special legal protections against termination. Navigating illness during this early phase requires a clear understanding of the legal landscape governing employment and the limitations of the at-will doctrine that governs most employment relationships.
Defining the Probationary Employment Period
A probationary period is an internal human resources designation used by companies to assess a new hire’s suitability for a permanent role. These periods commonly last for 30, 60, or 90 days, though the duration is determined entirely by the employer’s internal policy. The primary function is to give the organization time to evaluate the employee’s performance, cultural fit, and attendance record before fully committing to the employment relationship.
From the company’s perspective, probation is a trial period during which management monitors a new worker’s ability to handle the responsibilities of the position. This allows for a more streamlined termination process if the employee fails to meet expectations related to productivity or consistent presence. Employees who frequently miss work, even due to illness, may be seen as unreliable during this critical assessment phase.
In most United States jurisdictions, the probationary period does not fundamentally alter the legal status of the employment relationship. The designation is largely a matter of company policy rather than a change in state or federal labor law. Therefore, the general rules governing termination apply to a probationary employee just as they would to a long-term worker.
The Legal Reality of At-Will Employment
The foundation of employment law across the majority of the United States rests on the doctrine of at-will employment. This principle establishes that, in the absence of a specific contract or collective bargaining agreement, an employer has the right to terminate an employee for any reason, or no reason at all. The only limitation on this broad authority is that the reason for termination cannot be illegal, such as discrimination based on a protected characteristic.
Connecting this doctrine to sickness during probation means an employer can lawfully dismiss a new employee for general poor attendance. If an employee misses a few days of work due to a standard illness, the employer is generally within their rights to decide that this poor attendance record makes the employee unsuitable for continued employment. The at-will standard allows the employer to prioritize consistent presence and reliability when assessing a new hire.
A single, legitimate instance of sickness during probation can be viewed by the employer as a lawful, non-discriminatory reason for termination under the at-will framework. Since the employee is new, they have not established a track record of reliability, and the employer is permitted to use the limited time of the probationary period to make a final hiring decision. The burden is on the employee to prove that the termination was for an illegal, discriminatory reason, which is difficult to do when the employer cites attendance or performance issues.
Key Legal Protections Against Termination Due to Illness
Despite the broad reach of the at-will doctrine, specific federal and state laws provide exceptions that protect employees from termination when the illness meets certain criteria. These protections introduce nuance, requiring an employer to consider whether the employee’s condition or the use of specific sick time is legally protected. These statutes often have strict eligibility requirements that new employees may struggle to meet during a standard probationary period.
Federal Disability Protections
The Americans with Disabilities Act (ADA) offers protection if an employee’s illness qualifies as a disability. A disability is defined as a physical or mental impairment that substantially limits one or more major life activities. If an illness, such as a chronic condition, serious injury, or long-term impairment, meets this definition, the employer may be required to engage in an interactive process with the employee.
This process requires the employer to determine if a reasonable accommodation can be provided to allow the employee to perform the job’s essential functions. Accommodations might include a modified work schedule, time off for medical appointments, or a temporary leave of absence. Importantly, ADA protections apply from the first day of employment, meaning a probationary employee can request accommodation for a qualifying disability. Terminating an employee solely because they require a reasonable accommodation for a covered disability is generally unlawful under the ADA.
Federal Medical Leave Requirements
The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 workweeks of unpaid, job-protected leave per year for certain family and medical reasons. This protection is a significant safeguard against job loss due to a serious health condition. However, the FMLA has explicit eligibility requirements that make it highly unlikely to apply to an employee during a standard probationary period.
To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months. Additionally, the employee must have worked a minimum of 1,250 hours during the preceding 12-month period. Since most probationary periods are far shorter than one year, a new employee requiring substantial medical leave is typically not covered by federal FMLA protections and may be terminated under the at-will standard.
State and Local Paid Sick Leave Laws
A growing number of states and municipalities mandate that employers provide access to accrued paid sick time. These laws are designed to prevent employees from being financially penalized or terminated for taking necessary time off for their own health or a family member’s health. Unlike the FMLA, many local laws require employees to begin accruing sick time immediately upon hire or after a very short waiting period.
Ordinances in states like California and New York, along with numerous cities, explicitly protect an employee’s right to use this accrued sick time without fear of retaliation or termination. If a probationary employee uses legally protected sick leave, they cannot be fired solely for that absence. Employees should consult their specific local jurisdiction to understand the accrual rate, the waiting period, and the protected use provisions that apply to their workplace.
Actionable Steps When Illness Strikes During Probation
When illness necessitates missing work during a probationary period, a new employee must prioritize professional communication and procedural compliance to mitigate the risk of termination. The most effective way to protect employment status is to strictly adhere to all company policies regarding reporting an absence. This means following the employer’s specific call-out procedure exactly, including who to contact and by what method.
Proactive and professional communication is essential to demonstrate responsibility and commitment despite the setback. An employee should clearly state the reason for the absence and provide an estimated date of return, updating the supervisor immediately if the date shifts. Maintaining a professional tone in all written and verbal exchanges helps to counter any perception of irresponsibility or lack of dedication.
The new employee should also maintain thorough documentation related to the illness and the communication with the employer. This includes obtaining a doctor’s note for the absence, even if the company policy does not explicitly require one for short absences. Keeping a record of all emails or texts exchanged with the supervisor creates a paper trail demonstrating the absence was legitimate and that the employee followed all necessary procedural steps.
Before taking time off, the employee should consult the company’s employee handbook or the initial employment contract for specific sick leave policies. Understanding if the company provides any paid or unpaid sick time, and how that time is accrued or used, is an important step in navigating the situation. Adhering to the company’s own policy demonstrates good faith, even if the law does not provide protection.
Demonstrating commitment to the job despite the setback can also help mitigate risk with management. This may involve offering to check emails briefly from home, if medically able, or immediately catching up on missed work upon returning to the office. Showing a strong desire to succeed in the new role helps supervisors overlook a brief, unavoidable absence during the probationary assessment period.
What to Do If You Are Terminated
If a probationary employee is dismissed following an absence, the first step is to gather all relevant documentation. This includes the job offer letter, the company handbook, and all records of communication about the illness. Understanding the specific reason the employer provides for the termination is necessary, as this information is usually stated in a termination letter or during the final meeting.
The terminated employee should immediately file for unemployment benefits with the state unemployment office. Eligibility for unemployment is determined by state law and is separate from the legality of the firing itself. Unemployment benefits can provide financial support while the individual seeks new employment opportunities.
If the employee suspects the termination was illegal—for instance, if the illness qualified as a protected disability under the ADA or the time off was protected by a local paid sick leave law—they should seek consultation. Reviewing the situation with an employment lawyer or contacting the state labor board can clarify if the termination violated specific statutes and provide guidance on filing a formal complaint.