Termination for excessive days off depends heavily on the specific circumstances of the absence, the state of employment, and company policies. Decisions involving employee absences are complex because various state and federal laws provide protections for certain types of leave. Understanding the landscape of employment standards is necessary for both employers and employees to navigate these situations effectively. This overview focuses on common workplace rules and legal protections involved.
The Default Rule: Employment at Will
The legal foundation for most private-sector employment in the United States is the doctrine of “employment at will.” This principle allows an employer to terminate an employee at any time, for any reason, or for no reason at all, provided the reason is not illegal or discriminatory. This means an employer can generally fire an employee for taking “too many” non-protected days off, even if those days were sick days beyond the employee’s accrued paid leave.
This wide latitude is not absolute, as certain exceptions limit an employer’s discretion. Primary limitations include terminations that violate public policy, such as firing an employee for performing jury duty or whistleblowing. Other limitations involve terminations that breach an implied employment contract created through an employee handbook or verbal promise. While the at-will doctrine is the prevailing default in nearly every state, it is significantly tempered by anti-discrimination laws and other statutes that protect specific types of leave.
How Employers Define Excessive Absenteeism
Employers manage non-protected time off through clearly defined attendance policies. Companies often use formalized attendance programs to define what constitutes excessive absenteeism, including unauthorized absences, tardiness, and sick days that exceed the amount of accrued paid time off. The goal of these policies is to ensure consistent application of disciplinary action across the workforce.
A common mechanism used to enforce attendance is a progressive disciplinary system. This structured approach involves escalating steps, starting with a verbal warning, followed by written warnings, suspension, and ultimately termination for continued violations. Some employers utilize a point system, where each unexcused absence accrues a set number of points. Reaching a specific point threshold automatically triggers a disciplinary step, such as a final warning or termination. In these cases, the grounds for termination is the violation of the documented company policy, rather than the absence itself.
When Time Off Is Legally Protected
The most significant limitations on an employer’s ability to terminate an employee for taking time off are found in federal and state laws that mandate job protection for specific circumstances. If an absence qualifies under one of these laws, an employer cannot legally use it as grounds for termination. These protections create exceptions to the at-will doctrine, ensuring employees can address serious personal or family needs without fear of job loss.
Serious Health Conditions or Family Needs
The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of job-protected, unpaid leave per year for specific family and medical reasons. To be eligible, an employee must have worked for their employer for at least 12 months and accumulated a minimum of 1,250 hours of service over the past 12 months. Additionally, the employee must work at a location where the company employs 50 or more employees within a 75-mile radius. This protected leave can be used for the 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.
Disability Accommodations
For employees who may not qualify for FMLA or who require additional time off, the Americans with Disabilities Act (ADA) may offer protection. The ADA requires employers with 15 or more employees to provide “reasonable accommodations” to qualified individuals with a disability, unless doing so would impose an undue hardship on the business. A temporary or intermittent leave of absence can be considered a reasonable accommodation if it enables the employee to return to work and perform the essential functions of their job. This protection applies even if the employee has exhausted their available FMLA leave or company-provided sick time.
Work-Related Injuries
Employees who are injured on the job are covered by state-mandated Workers’ Compensation systems. These systems provide benefits for medical treatment and lost wages. Most state laws prohibit employers from retaliating against an employee for filing a claim. Terminating an employee solely because they filed a Workers’ Compensation claim or needed time off due to a work-related injury is considered an unlawful, retaliatory discharge. However, an employer may still terminate an injured employee for reasons unrelated to the injury, such as company-wide layoffs or violation of a non-attendance policy.
State and Local Mandates
Beyond the federal minimums, many states and local municipalities have enacted laws that expand protected leave. Numerous jurisdictions mandate that employers provide a certain amount of paid sick leave that employees can accrue and use for their own or a family member’s illness. Some states, like Illinois and Maine, require employers to provide paid time off that can be used for any reason. These local mandates provide an additional layer of protection for short-term absences that may not qualify under federal laws.
The Employee’s Obligation to Provide Notice and Certification
Even when an employee’s absence is legally protected, the employee still has procedural obligations that must be met to maintain that protection. For foreseeable leave, such as a scheduled surgery, the employee is generally required to provide the employer with at least 30 days’ advance notice, or as much notice as is possible under the circumstances. Failure to follow the company’s documented notice procedures may lead to the denial of the protected leave.
Employers also have the right to request medical certification to verify that an absence qualifies as protected leave under laws like the FMLA or the ADA. For FMLA leave, the employee is typically given 15 calendar days to provide this medical documentation, which must confirm the existence of a serious health condition and the necessity of the leave. If an employee fails to provide the required and timely certification, the employer may be justified in denying the leave and applying their standard attendance policy.
Steps to Take If Terminated for Absenteeism
If an employee is terminated and believes their absence was protected under federal or state law, there are specific steps to consider. First, carefully review the termination letter and any associated company policies to understand the official reason for the dismissal. It is important to gather all relevant documentation, including medical notes, emails, performance reviews, and copies of the employee handbook or attendance policy.
The employee can then file an internal appeal if the company has a formal grievance procedure. If the termination is believed to be based on discrimination or retaliation for exercising a protected right, the employee may file a complaint with the appropriate government agency. This often means contacting the Equal Employment Opportunity Commission (EEOC) for discrimination claims or the state’s Department of Labor. Consulting with an employment lawyer is also advisable to assess the facts of the case and determine if a wrongful termination claim is viable.