The fear of losing one’s job after calling in sick is a common anxiety for many workers in the United States. While a medical necessity may seem to offer automatic protection from termination, the reality is complicated and depends heavily on the specific laws in your location and the nature of your illness. The answer to whether an employer can legally fire you for an absence rests on a legal framework that shifts from a broad default rule to specific, established protections. Understanding the baseline assumptions of employment law and the specific statutes that create exceptions is necessary.
Understanding At-Will Employment
Most employment relationships in the United States operate under the doctrine of at-will employment, which is the default rule in 49 states. This principle dictates that an employer can terminate an employee at any time, for any reason, or even for no reason at all, provided the reason is not otherwise illegal. The employee retains the reciprocal right to quit at any time without notice. Under this doctrine, an employer is generally not required to demonstrate “just cause” for termination, meaning an absence due to a minor illness could theoretically lead to dismissal. Termination for the use of sick days is often permissible unless a specific exception applies. The at-will arrangement can only be overcome by an explicit contract or by state and federal laws that carve out protected reasons for absence.
When Federal Laws Offer Job Protection
Two major federal statutes create exceptions to at-will employment for health-related absences: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). The FMLA grants eligible employees up to 12 workweeks of unpaid, job-protected leave within a 12-month period for a defined “serious health condition.” To qualify, an employee must work for a covered employer (generally one with 50 or more employees within 75 miles) and must have worked for the employer for at least 12 months and 1,250 hours in the preceding year.
A “serious health condition” is narrowly defined, typically requiring inpatient care or incapacity of more than three consecutive days accompanied by continuing treatment from a healthcare provider; it does not cover a routine cold or flu. If an employee is eligible and takes FMLA-protected leave, the employer cannot legally terminate them for that absence and must restore them to the same or an equivalent position upon their return.
Separate from FMLA, the ADA applies if an employee’s illness qualifies as a disability, defined as a physical or mental impairment that substantially limits one or more major life activities. If an illness meets this definition, the employee may be entitled to a reasonable accommodation from the employer, provided it does not create an undue hardship for the business. Time off, either intermittently or continuously, can constitute a reasonable accommodation under the ADA. An employer who fires an employee instead of engaging in the interactive process to provide a reasonable accommodation, such as a modified work schedule or unpaid leave, may be violating the ADA.
Protections Under State and Local Paid Sick Leave Laws
Beyond federal statutes, a growing number of states and local municipalities have enacted paid sick leave laws that offer protection for routine, short-term illnesses not covered by the FMLA. Since there is no federal law mandating paid sick leave for private sector workers, a complex patchwork of regulations exists across the country. As of 2025, over a dozen states and the District of Columbia, along with numerous cities and counties, require employers to provide a minimum amount of accrued sick time.
These mandated laws provide job protection for employees who use their lawfully accrued sick time, meaning an employer cannot terminate or retaliate against an employee for taking this specific, protected leave. For instance, if a local law grants an employee 40 hours of protected sick time per year, termination for using those hours is a violation of the statute. The permissible uses are generally broad, covering the employee’s own illness, preventative medical care, or caring for a sick family member. Employers are prohibited from penalizing employees for requesting or using this protected time and must comply with the most generous sick leave mandate that applies.
Contractual and Employer Policy Limitations
An employee’s job security regarding sick calls can be established outside of government-mandated laws through express or implied agreements. An individual employment contract or a collective bargaining agreement (CBA) often supersedes the at-will doctrine by specifying that an employee can only be terminated for “just cause.” These agreements typically include specific, multi-step disciplinary procedures that must be followed before termination, protecting an employee from arbitrary firing over an absence.
Even without a formal contract, an employer’s own written policies can create an implied contract that limits the power to terminate. If an employee handbook outlines a system of progressive discipline (such as verbal warning, written warning, suspension, and then termination), the employer may be legally obligated to follow those steps. Deviating from a promised progressive discipline policy and immediately firing an employee for a sick call may be interpreted by a court as a breach of that implied contract.
When Firing for Sickness Becomes Illegal Retaliation
A termination for a sick call becomes illegal when the employer’s motive is retaliatory or discriminatory, even if the absence itself was not explicitly protected. Retaliation occurs when an employer punishes an employee for engaging in a legally protected activity. If an employee is fired immediately after filing a workers’ compensation claim for an on-the-job injury or reporting workplace safety violations, the termination is likely illegal retaliation, even if framed as an absence issue.
An employer cannot legally terminate an employee under the guise of an absence policy if the true underlying reason is discrimination based on a protected characteristic. For example, if an employer tolerates frequent absences from younger employees but fires an older employee for the same number of sick days, this suggests age discrimination. Furthermore, termination for requesting or using time off protected by FMLA, the ADA, or a state paid sick leave law constitutes unlawful retaliation for exercising a statutory right. This type of wrongful termination often involves a violation of public policy, meaning the employer’s action undermines a fundamental legal principle established to protect the public good.
What to Do If You Are Terminated
If you believe you have been wrongfully terminated for calling in sick, taking immediate and systematic action is important for protecting your rights. The first step should be to thoroughly document everything related to your employment and the termination.
- Thoroughly document everything related to your employment and the termination, including copies of the employer’s attendance policy, the employee handbook, and any medical documentation or communications about your absence.
- File for unemployment benefits immediately, as this process is separate from any legal claim and provides financial support.
- Seek a consultation with an employment law attorney who can evaluate the facts of your case against the applicable federal, state, and local laws.
- File a formal complaint with the appropriate government agency, such as the Equal Employment Opportunity Commission (EEOC) for ADA or discrimination claims, or your state’s labor board for violations of local sick leave laws.