A “write-up,” or disciplinary action, is a formal written notification detailing an employee’s violation of company policy or failure to meet performance expectations. This documentation is placed in the employee’s personnel file and serves as a step in a progressive disciplinary process that can lead to termination. While employers have the authority to discipline staff for attendance issues, this power is not absolute. Various legal protections exist that can shield an employee’s absence from adverse action, making it important to understand the distinction between a standard sick day and a legally protected leave.
Understanding At-Will Employment and Disciplinary Action
Most employment relationships in the United States operate under the doctrine of at-will employment. This means an employer can generally terminate an employee for any reason, or no reason at all, provided the reason is not specifically illegal. This broad authority includes the right to issue formal disciplinary actions for policy infractions, such as calling in sick. A write-up for an absence documents that the time away violated a company rule, like an attendance policy, even if the employee was genuinely ill. Employers use this process to create a documented history of non-compliance, which provides a legitimate basis for future adverse actions. Employers maintain the discretion to discipline an employee for attendance unless a specific legal exception applies.
When Company Attendance Policies Lead to Write-Ups
The most frequent cause of a write-up for calling in sick is the failure to comply with the company’s internal attendance policy. These policies often operate independently of the reason for the absence, focusing only on the fact that the employee was not at work. Many employers use “no-fault attendance policies” or “point systems” that assign penalty points for each instance of absence or tardiness. Under a point system, the employee accumulates points regardless of whether the absence was due to a minor cold or a serious illness. Once an employee reaches a predetermined threshold of accrued points, the policy automatically triggers disciplinary action, such as a written warning or termination. A no-fault system is designed to promote consistent enforcement and minimize management discretion. Disciplinary action can also result if an employee fails to follow the proper procedure for reporting an absence, such as neglecting to notify a supervisor within the required timeframe.
Sick Leave Protected by Federal Law
Federal laws offer a shield against disciplinary action for qualifying medical time off.
The Family and Medical Leave Act (FMLA)
The FMLA allows eligible employees to take up to twelve weeks of job-protected, unpaid leave per year. This leave must be for a serious health condition that prevents the employee from performing their job duties, defined as an illness involving inpatient care or continuing treatment by a healthcare provider. If an absence qualifies as FMLA leave and the employee followed the employer’s notice and certification procedures, disciplinary action taken solely due to that absence constitutes illegal retaliation.
The Americans with Disabilities Act (ADA)
The ADA prohibits covered employers from discriminating against a qualified individual with a disability. An absence may be protected under the ADA if it is required as a reasonable accommodation for a disability. This can include a chronic condition or a temporary impairment that substantially limits a major life activity. Employers must engage in an interactive process to determine if a period of unpaid leave would allow the employee to return to work. Disciplining an employee for an absence that qualifies as a legally required accommodation under the ADA is a violation of the law. However, employees must adhere to the procedures for requesting and certifying their need for protected leave.
Illegal Reasons for Disciplining an Employee
Disciplinary action for calling in sick is illegal if motivated by discriminatory or retaliatory intent, regardless of the company’s attendance policy. Federal law prohibits employers from disciplining an employee based on a protected characteristic, such as race, color, religion, sex, national origin, age, or disability. For instance, if an attendance policy is applied inconsistently, penalizing only employees of a certain age for sick days, this suggests illegal discrimination. An employer also cannot legally discipline an employee in retaliation for engaging in a “protected activity.” This includes filing a discrimination complaint, raising concerns about workplace safety, or attempting to organize a union. If an employee calls in sick shortly after reporting a manager’s misconduct, and the subsequent write-up is a punitive response, the stated attendance violation may be a pretext for an unlawful motive.
What to Do After Receiving a Disciplinary Action
When an employee receives a disciplinary action they believe is unfair or illegal, the immediate response should focus on documentation. The employee should request a copy of the written warning and any evidence the employer is relying on, such as attendance records. They should also document their own perspective on the incident, noting the date, time, and specific circumstances of the absence. If the company has an internal grievance procedure, the employee should formally challenge the write-up through that process, citing any policy misapplication or overlooked legal protections. If the disciplinary action relates to a legally protected absence, the employee should gather evidence demonstrating the protected nature of the activity or the inconsistent application of the policy. If the internal appeal is unsuccessful, external resources can provide guidance on filing a formal complaint or pursuing legal action.
External resources include:
- The U.S. Department of Labor
- The Equal Employment Opportunity Commission
- An employment attorney