Whether an employee can be written up for being sick depends on company policy and federal and state law. The immediate answer is that under standard employment rules, a write-up for an absence due to illness is generally permissible, but this rule has significant exceptions. Disciplinary action depends heavily on the illness’s duration and severity, the employer’s size, and whether the employee qualifies for specific statutory protections. Understanding these baseline rules and legal safeguards is necessary to navigate a disciplinary action effectively.
The Baseline: At-Will Employment and General Attendance Policies
Most employment relationships in the United States operate under “at-will” employment. This means an employer can terminate an employee for any reason, provided it is not an illegal reason. This principle gives employers broad authority to enforce strict attendance policies. A disciplinary write-up for missing work often stems from the employee’s failure to meet attendance requirements, not the illness itself.
Employers commonly implement “no-fault” attendance systems. These systems assign points for every absence regardless of the reason. Accumulating a certain number of points triggers escalating disciplinary action, such as a written warning. For short-term, non-serious illnesses, employers can require a doctor’s note for verification. The write-up formally records that the employee violated a policy threshold permitted under the at-will framework.
When Illness Triggers Legal Protections
While general attendance policies are broad, certain illnesses and medical conditions trigger federal and state laws. These laws explicitly prohibit an employer from issuing disciplinary warnings for medically necessary absences. Employees must meet specific eligibility criteria to qualify for these protections, which cover situations from chronic health flare-ups to extended recovery periods.
Family and Medical Leave Act (FMLA)
The FMLA provides eligible employees with up to 12 weeks of job-protected, unpaid leave per 12-month period for a “serious health condition.” An employee is generally eligible if they have worked for the employer for at least 12 months, completed 1,250 hours of service, and work at a location with 50 or more employees within a 75-mile radius. A “serious health condition” includes conditions involving inpatient care or incapacity lasting more than three consecutive days involving continuing treatment by a healthcare provider. Absences qualifying as FMLA leave cannot be counted against an employee under an attendance policy.
Americans with Disabilities Act (ADA)
The ADA requires employers with 15 or more employees to provide reasonable accommodations to qualified individuals with disabilities. This accommodation can include periodic time off from work. A chronic condition that substantially limits a major life activity, such as epilepsy or diabetes, may qualify as a disability. Leave is considered a reasonable accommodation if it allows the employee to manage their condition and return to perform the essential job functions. The employer and employee must engage in an “interactive process” to determine the necessity and duration of the required leave.
State and Local Paid Sick Leave Laws
Many states and municipalities mandate that employers provide paid sick time for short-term illnesses. These illnesses are often not severe enough to qualify under FMLA or the ADA. These laws typically cover absences for preventative care, minor illnesses, or caring for a sick family member. The statutes contain explicit anti-retaliation provisions. This means an employer cannot issue a disciplinary action for the lawful use of this accrued, protected sick time.
Documentation and Procedure: Why the Write-Up Might Occur
A write-up can be issued even when an employee has a legitimate medical condition if the discipline is based on a procedural failure rather than the absence itself. Employees must follow the employer’s internal rules for reporting an absence to qualify for protection. This means an employee must notify their supervisor or the designated contact person promptly, often before the scheduled start of the shift.
Failing to use the correct internal reporting channel, such as calling a co-worker instead of the manager or HR, can lead to a disciplinary action. A write-up may also be justified if an employee fails to provide required medical documentation in a timely manner. While employers cannot demand excessive or overly detailed medical information, they can require basic certification or a doctor’s note to verify the necessity of the time off, even for legally protected leave. The write-up, in this context, addresses procedural misconduct and a violation of the notification policy.
Progressive Discipline and Defining Excessive Absenteeism
Many organizations utilize a progressive disciplinary system to manage policy violations, which involves a series of escalating penalties. This system typically moves from a verbal warning to a written warning, then to a suspension, and finally to termination. The purpose of this structure is to provide employees with formal notice and an opportunity to correct their behavior before the most severe consequence is imposed.
The concept of “excessive absenteeism” is central to this system. It is defined by the number of non-protected, unscheduled absences that accumulate within a rolling period. For example, a no-fault system might assign points for each non-protected absence, with a threshold leading to termination once reached. While protected FMLA or ADA absences cannot be the sole reason for discipline, non-protected, short-term illnesses can still contribute to the point total. Under the ADA, an employer may deny a request for indefinite or excessive leave if it causes an “undue hardship,” meaning significant difficulty or expense to the business operations.
Immediate Steps If You Are Written Up
Receiving a write-up for an absence requires an immediate, methodical response focused on documentation and procedure.
The following steps should be taken:
- Review the employer’s written attendance and disciplinary policies to understand the exact violation and the next steps in the progressive discipline process.
- Gather and organize all communication, text messages, emails, and medical evidence related to the absence in question to create a factual record.
- Write a factual rebuttal to attach to the official written warning, stating the employee’s perspective and correcting any factual inaccuracies.
- Escalate the matter to Human Resources, a union representative, or an employment lawyer if the write-up is suspected to be retaliation for requesting or taking protected leave.
Seeking professional guidance is particularly important if the employer has violated its own policy or a legal protection.