When a serious illness strikes, concerns often extend beyond physical recovery to job security. Whether an employer can fire an employee for being sick depends heavily on specific circumstances and applicable laws. While employers maintain significant discretion, a patchwork of federal and state laws provides protections under certain conditions, creating a legal shield for workers dealing with health issues. Understanding baseline employment rules and legal exceptions is key to safeguarding professional standing during medical need.
Understanding At-Will Employment
The majority of private-sector employment in the United States operates under the legal doctrine of “at-will” employment. This means that, without an employment contract or union agreement, an employer can terminate an employee at any time and for almost any reason, provided the reason is not illegal. Similarly, an employee is free to leave a job at any time without penalty.
This default status allows employers to enforce attendance policies and terminate employees based on non-protected absences, even those related to illness. The key distinction rests on whether the reason for termination falls into a recognized legal exception, such as discrimination or retaliation. Federal and state laws mandating specific protections for health-related leave are important because they carve out exceptions to this general rule.
Federal Protections for Serious Illness and Disability
For severe or long-term health issues, two major federal laws provide job protection: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
The Family and Medical Leave Act (FMLA)
The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave within a 12-month period for their own serious health condition or to care for a family member. Eligibility requires working for a covered employer (generally 50 or more employees within 75 miles) for at least 12 months and 1,250 hours in the preceding year.
A “serious health condition” under the FMLA is specifically defined. It includes conditions requiring an overnight hospital stay or incapacity of more than three consecutive days requiring continuing treatment by a healthcare provider. It also covers chronic conditions, such as asthma or diabetes, that require periodic treatment, as well as pregnancy. Employers cannot terminate an employee for taking FMLA-protected leave, and the employee is guaranteed the same or an equivalent job upon returning.
The Americans with Disabilities Act (ADA)
The ADA offers protection for employees with a qualified disability, which includes physical and mental impairments that substantially limit major life activities. Unlike the FMLA, the ADA does not guarantee a specific amount of time off. Instead, it requires employers to provide a “reasonable accommodation” to allow a qualified individual to perform the essential functions of the job. A leave of absence can be a form of reasonable accommodation, even after FMLA leave is exhausted.
Employers must engage in an interactive process with the employee to determine an effective accommodation. This is required unless the accommodation would cause an “undue hardship” on the business. This standard is generally high and relates to significant difficulty or expense. If an employee’s illness qualifies as a disability, the employer must explore accommodations, such as a modified schedule or additional unpaid leave, before resorting to termination.
State and Local Mandates for Paid Sick Time
Federal law does not mandate that private employers provide paid leave for routine, short-term illnesses, which creates a gap in protection for common ailments like the flu or minor injuries. This gap is being filled by state and local governments, which require employers to provide a minimum amount of paid sick time. Currently, over a dozen states, in addition to many municipalities, have mandatory paid sick leave laws in effect.
These laws typically allow employees to accrue leave hours based on time worked, such as one hour of paid sick time for every 30 or 40 hours on the job. The permissible uses for this accrued time are generally broad, covering the employee’s own short-term illness, injury, or medical appointment, or for caring for a sick family member. The maximum amount of leave employees can accrue and use annually varies significantly by jurisdiction and is often tiered based on employer size. These mandates offer paid, protected time off for absences that do not meet the definition of a serious health condition required for FMLA coverage.
When Unprotected Absences Lead to Termination
An employer can legally terminate an employee if the absence is not protected by the FMLA, the ADA, or a state or local sick leave mandate. This often occurs when an employee is ineligible for federal protection, such as working for a small company or failing to meet FMLA tenure requirements. In these situations, the employer retains the right to enforce established, neutral attendance policies.
If excessive absenteeism violates a clearly defined company policy and no legal protection applies, termination is lawful under the at-will doctrine. Failing to follow proper notification procedures, such as a “no call, no show,” is also a legitimate, non-discriminatory reason for termination. The employer is not obligated to retain an employee who is unable to perform essential job functions unless a protective law applies.
Recognizing Retaliation and Wrongful Termination
Termination due to illness is illegal if it constitutes wrongful termination, which often involves retaliation. Retaliation occurs when an employer takes an adverse action, such as firing, demoting, or reducing pay, because an employee exercised a legally protected right. Protected activity includes requesting FMLA leave, asking for a reasonable accommodation under the ADA, or filing a complaint about sick leave violations.
The timing of the termination is a significant factor in a retaliation claim. A firing that happens shortly after an employee requests protected leave can be highly suggestive of an illegal motive. Even if an employer attempts to cite a violation of company policy as the reason, the termination is wrongful if the true underlying reason was the employee’s protected activity. Employees who suspect they were fired illegally should document the timeline of events and seek legal counsel to assess their case.
How to Protect Yourself During an Illness
The most effective way for an employee to protect their job during an illness is through adherence to company procedures and formal documentation of requests. As soon as medical leave is needed, employees should formally notify their supervisor and the human resources department, preferably in writing. This creates a documented record to support a claim of protected leave.
Employees must strictly follow the company’s absence reporting policy, including call-in procedures and deadlines for submitting medical certification. When dealing with a serious health condition, formally requesting FMLA paperwork or an ADA reasonable accommodation in writing is necessary to trigger the employer’s legal obligations under federal law. Maintaining copies of all correspondence, medical documentation, and company policy manuals is a proactive measure that can prove invaluable if a dispute arises.