The question of job security when needing to miss work is a common source of anxiety for employees. While the answer to whether you can be fired for calling out is generally yes, this default rule is significantly altered by a complex web of state and federal legal protections. Understanding these exceptions and the limits of an employer’s authority is essential for protecting your livelihood.
The General Rule of At-Will Employment
The foundation of the employment relationship in the United States is the doctrine of “at-will” employment, which prevails in 49 of the 50 states. This doctrine dictates that an employer can terminate an employee for any reason, or no reason, provided the reason is not specifically illegal. Similarly, an employee is free to leave a job at any time without cause. In the absence of an employment contract or specific legal protection, an employer may legally fire an employee for a single absence, regardless of the reason. This establishes the baseline expectation that job security is minimal unless the absence is legally protected.
When Calling Out Is Legally Protected
Federal and state laws establish specific categories of absence that override the at-will doctrine. When an absence falls under these protections, an employer cannot legally terminate the employee for taking the time off. These legal shields provide employees with job-protected leave for certain medical, family, and civic obligations.
Serious Health Conditions and FMLA
The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave within a 12-month period for specific family and medical reasons. Eligibility is strict, requiring the employee to have worked for the employer for at least 12 months, logged a minimum of 1,250 hours in the previous year, and work at a location with 50 or more employees within a 75-mile radius. FMLA protects time off for an employee’s own serious health condition, the birth or adoption of a child, or to care for an immediate family member with a serious health condition.
Qualifying Disabilities and the ADA
The Americans with Disabilities Act (ADA) requires covered employers to provide “reasonable accommodation” to qualified employees with disabilities, which can include time off work. This applies to physical and mental conditions that substantially limit a major life activity. A leave of absence may be required if it enables the employee to return to perform the essential functions of the job and does not cause the employer “undue hardship.” The employer must engage in an “interactive process” with the employee to determine the appropriate accommodation. Any requested leave must be for a finite duration.
Workers’ Compensation Claims
An employee injured on the job who needs time off to recover is protected against termination under workers’ compensation laws. These state-level statutes make it illegal for an employer to retaliate against an employee for filing a claim or for absences related to the work-related injury. Termination in this scenario is considered retaliatory and violates public policy.
Civic and Military Duties
Absences mandated by civic obligations are protected from punitive action by an employer. Every U.S. state prohibits an employer from firing an employee for being summoned to jury duty, though laws vary on whether the employer must provide pay. Many states also require employers to provide employees with time off to vote, sometimes mandating paid leave, if the employee does not have sufficient non-work time to reach the polls. Employees who are part of the military reserves or National Guard are protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA requires employers to grant time off for military service or training.
How Employer Policies Determine Termination Risk
Even when an absence is not legally protected, such as for a common cold or a non-emergency family matter, the risk of termination is heavily influenced by the employer’s documented policies. Many companies utilize formalized attendance point systems, where infractions like tardiness or unexcused absence are assigned specific point values. Accumulating a set number of points often triggers progressive disciplinary action, culminating in termination.
The specific rules outlined in an employee handbook become the standard by which an absence is judged. Termination may be upheld not because the employee was sick, but because they failed to follow the documented notification procedure, such as calling a direct supervisor. Companies are free to enforce these policies, provided they are applied consistently and do not violate state or federal protections. Failure to adhere to company rules on notice and documentation is a leading administrative cause for termination, even when the underlying reason for the absence is legitimate.
Identifying Illegal Retaliation Beyond Attendance
A termination may be illegal if the employer’s true motive is illegal retaliation for a separate protected activity, rather than the attendance issue itself. This differs from a protected absence, such as FMLA leave, and focuses on the employer’s discriminatory intent. An employee cannot be fired for engaging in protected non-attendance activities, such as reporting workplace safety violations or illegal conduct to a government agency (whistleblowing). Similarly, an employer cannot terminate an employee for filing a formal complaint of discrimination or harassment with the company or the Equal Employment Opportunity Commission (EEOC). If an employee is fired shortly after engaging in one of these protected actions, and the employer uses the employee’s attendance record as a pretext, the termination may be challenged as unlawful retaliation.
Best Practices for Minimizing Job Risk When Calling Out
Employees can minimize the risk of termination by proactively managing their absences according to established best practices. It is important to review the employee handbook and adhere strictly to the company’s specific notification procedure, including who must be notified and the required time frame. Employees should document all communication by noting the time, date, and name of the person they spoke with when calling out. Obtaining medical documentation for any illness requiring more than a single day of absence provides necessary evidence and helps protect the absence from being classified as unexcused. Consistent monitoring of accrued Paid Time Off (PTO) or sick time balances ensures that any absence is covered by available leave, demonstrating compliance and accountability.
Steps to Take After Being Fired for Absence
In the event of termination, the first step is to collect all relevant documentation related to the employment relationship and the absence. This includes the employee handbook, any written termination letter, performance reviews, and all medical notes or civic duty summonses that verify the reason for the time off. The timing and context of the termination should be compared directly against the company’s attendance policies. The next action should be to review eligibility for unemployment benefits, as state eligibility rules vary based on the stated reason for dismissal. If the termination followed a legally protected absence or a protected non-attendance activity, the employee should consult with an employment lawyer or their state labor board. These professionals can assess whether the termination violated a specific federal or state statute, such as the FMLA, ADA, or anti-retaliation laws.