The answer to whether frequent absences can lead to termination is complex, depending on a combination of factors specific to the employee’s location, the size of the employer, and the reason for the absence. For the average worker, the employment relationship is governed by a fundamental legal principle that provides employers with broad discretion regarding continued employment. Navigating this landscape requires understanding the baseline rules of the workplace and knowing when specific federal, state, or local laws create exceptions that protect your job.
The Default Rule: Employment At Will
Most employment relationships in the United States operate under the doctrine of employment at will. This legal principle establishes that an employer can terminate an employee at any time, for almost any reason, or for no reason at all, provided the reason is not specifically illegal. Likewise, an employee is free to leave a job at any time without notice. This doctrine means that, in the absence of a contract or a legal protection, an employer is generally within their rights to fire an employee for excessive or frequent call-outs, even if the absences are due to legitimate, non-protected illness. This baseline freedom is only limited by anti-discrimination and anti-retaliation laws, which prohibit firing based on a protected characteristic like race, religion, or sex.
Company Attendance Policies and Progressive Discipline
Employers manage non-legally protected absences through internal attendance policies, often utilizing a system of progressive discipline to enforce attendance standards. Many companies use a “point system” which assigns specific numerical values to various attendance infractions, such as a full point for an unexcused absence or a half-point for tardiness. This system formalizes the process and aims to ensure consistency in how attendance issues are addressed across the workforce. As an employee accumulates points, they trigger escalating disciplinary actions designed to correct the behavior. Reaching a final, maximum point threshold within a defined rolling period generally results in termination of employment, and the employer’s ability to defend this action rests on their consistent application of this documented policy.
Federal Protections Against Termination for Absence
Federal law provides two significant shields against termination for medically necessary absences: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
The Family and Medical Leave Act (FMLA)
The FMLA provides eligible employees of covered employers with up to 12 workweeks of unpaid, job-protected leave in a 12-month period. To qualify, an employee must have worked for the employer for at least 12 months and completed a minimum of 1,250 hours of service during the previous 12 months. The employee must also work at a location where the company employs 50 or more employees within a 75-mile radius. This leave covers an employee’s own serious health condition, the care of a spouse, child, or parent with a serious health condition, or the birth or adoption of a child. FMLA leave can be taken intermittently for ongoing medical appointments or flare-ups of a condition, and a legally protected FMLA absence cannot be counted against an employee under an attendance point system.
The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees and offers protection even if an employee does not qualify for FMLA or has exhausted their FMLA leave. The ADA requires employers to provide reasonable accommodations to qualified employees with a disability, unless doing so would impose an undue hardship on the business. A reasonable accommodation can include a modification of an employer’s standard attendance rules or the provision of unpaid leave beyond what is offered by company policy or FMLA. An employee must engage in a good-faith interactive process with the employer to determine an effective accommodation. Requesting time off for a disability-related reason must be treated as a request for accommodation, requiring the employer to consider if a change to the attendance policy is necessary to allow the employee to perform the essential functions of their job.
State and Local Paid Sick Leave Laws
In addition to federal job-protected leave, a growing number of states and local jurisdictions have enacted laws mandating that employers provide accrued paid sick leave. Unlike the FMLA, which is limited to serious health conditions, these laws generally cover shorter-term, common illnesses, preventative care, and sometimes issues related to domestic violence or stalking. There is no federal requirement for private employers to offer paid sick leave, making these state and municipal ordinances the primary source of this protection. These laws establish minimum accrual rates and specify the reasons for which the time can be used. Employees are protected from being disciplined or terminated for using the paid sick time they have legally accrued, but they must check the laws in their specific county or city, as the most favorable provision will often apply.
Handling Absences: Best Practices for Employees
Employees can significantly mitigate the risk of termination by being proactive and adhering to established workplace protocols when managing absences.
- Know and strictly follow the company’s established call-out procedure, including notifying a direct supervisor or designated personnel as promptly as possible.
- Track all accrued leave balances, including paid time off, sick time, and any available protected leave under FMLA or state law.
- Formally request protected leave by completing the required paperwork and providing necessary medical certification when an absence may qualify for protection under the FMLA or the ADA.
- Maintain detailed personal records of all absences, including dates, reasons, and copies of any doctor’s notes or communication with the employer, for documentation should a disciplinary action be challenged later.
Recourse If You Believe You Were Wrongfully Terminated
If an employee believes they were terminated for an absence that was legally protected, they have several paths for recourse. The initial step involves determining which law may have been violated, typically the FMLA, the ADA, or a state or local protected sick leave law. Employees who suspect discrimination or illegal retaliation under the ADA should file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a corresponding state fair employment practice agency. There are strict time limits for filing a charge, often 180 or 300 days from the date of the termination, so acting quickly is important. For claims under the FMLA, a complaint can be filed with the Department of Labor’s Wage and Hour Division, or a private lawsuit can be filed directly. Consulting with an employment lawyer is generally advised to navigate the complexities of these overlapping laws and ensure the complaint is filed with the correct agency within the legal timeframe.