Terminating a worker for frequent illness is one of the most legally complicated areas in human resources management. While the general principle of at-will employment permits termination for almost any reason, that freedom is significantly curtailed when the absence relates to a medical condition. The legal framework surrounding employee absences is heavily regulated, requiring employers to navigate a complex web of protections before implementing disciplinary action. Proceeding without extreme caution and consistency can expose a business to significant risks of wrongful termination or discrimination claims.
Managing Unprotected Absenteeism
In most jurisdictions across the United States, the default employment relationship is “at-will,” meaning either the employer or the employee can end the relationship at any time for any reason not prohibited by law. This concept allows an employer to terminate a worker for general absenteeism that falls outside of legally protected categories. For termination to be defensible, the employer must first establish clear, written attendance policies that define “excessive” absence.
These workplace rules should detail the specific number of occurrences or total hours of absence that will trigger disciplinary action. The policy must also clearly outline the consequences, such as progressive discipline steps leading up to potential termination. Successful enforcement lies in uniform application, ensuring every employee is held to the exact same standard regardless of their position or any protected characteristic.
Inconsistency in applying attendance rules is often the fastest route to a successful discrimination or retaliation claim, even if the absence was technically unprotected. If one employee is terminated after five unexcused absences, but another is allowed ten, the employer has created a vulnerability. Before any termination for absenteeism occurs, the employer must verify that the employee’s history of absences is entirely unprotected by federal or state statutes.
The Role of the Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) provides substantial protection against termination for frequent medical absences. This federal law requires covered employers to grant eligible employees up to 12 workweeks of unpaid, job-protected leave during any 12-month period for specific family and medical reasons. An employer is covered if they employ 50 or more employees within a 75-mile radius. An employee is eligible if they have worked for the employer for at least 12 months and completed 1,250 hours of service during the previous 12-month period.
The FMLA’s protection is particularly relevant to frequent, short-term absences through the provision for “intermittent leave.” This type of leave allows an employee to take time off in separate blocks—from an hour to several days—due to a single medical necessity, such as flare-ups of a chronic condition. Employees utilizing this legally protected intermittent leave cannot be disciplined, counted against attendance policies, or terminated for those specific absences.
Employers must correctly designate an employee’s qualifying absence as FMLA leave, even if the employee does not specifically request it by name. Failing to designate the leave or attempting to discipline a worker for taking FMLA-protected time off constitutes interference with the employee’s rights. Any disciplinary action taken against a worker who has requested or used FMLA leave carries a high risk of being viewed as unlawful retaliation, which can lead to significant financial penalties for the business.
Navigating Absences as a Reasonable Accommodation
Frequent illness that does not qualify for FMLA protection may still be protected under the Americans with Disabilities Act (ADA) if the underlying condition qualifies as a disability. The ADA defines a disability as an impairment that substantially limits one or more major life activities, and many chronic conditions that cause recurring health issues meet this definition. When an employee’s frequent absences are tied to such a condition, the employer is legally obligated to engage in the “interactive process.”
This process requires the employer and employee to work together to determine if a reasonable accommodation can be made that allows the employee to perform the functions of their job. Time off, whether extended or intermittent, can be considered a form of reasonable accommodation under the ADA, even if the employee is not FMLA eligible. For example, allowing a modified schedule or providing a few additional unpaid sick days beyond the standard policy might be required.
An employer is only excused from providing an accommodation if it can demonstrate that doing so would cause an “undue hardship.” This means significant difficulty or expense, considering the nature and cost of the accommodation and the employer’s financial resources. Terminating an employee for absenteeism without first engaging in the required interactive process and exploring accommodations is a direct violation of the ADA if the illness relates to a known or suspected disability. The employer must clearly demonstrate that no accommodation, including additional leave, would allow the employee to meet the basic requirements of the job.
State and Local Paid Sick Leave Laws
Beyond federal protections like the FMLA and the ADA, employers must also contend with a growing patchwork of state and municipal laws mandating paid sick leave (PSL). These local ordinances often require businesses to allow employees to accrue paid time off for illness, injury, or preventative care. These local mandates often apply to smaller businesses or shorter-term absences that may not meet federal eligibility requirements.
These laws prohibit employers from disciplining or terminating an employee for the lawful use of their accrued, legally protected paid sick time. An employee using paid sick days under a local ordinance cannot have those days counted against them under the company’s general attendance policy. Employers operating across different regions must meticulously check the specific requirements of every state and local jurisdiction where they have employees, as these mandates exist in addition to federal requirements.
Establishing a Defensible Termination Process
When an employee’s frequent absences are genuinely unprotected by any federal or local statute, the termination process must be executed with precision to withstand legal scrutiny. The employer must ensure exhaustive documentation for every absence, including the date, duration, and stated reason for the time off. This documentation must clearly show which absences were protected, which were unprotected, and how the employee was notified of their status.
Before moving to termination, the company should demonstrate that it followed a clear path of progressive discipline, issuing written warnings and suspensions as outlined in the established attendance policy. The documentation should prove that the employee was warned that continued unprotected absenteeism would lead to the end of their employment. This procedural fairness helps dismantle later claims that the termination was sudden or discriminatory.
The final decision to terminate must be based solely on the employee’s failure to meet attendance requirements for unprotected time, and not on any protected characteristic or previous use of protected leave. Any deviation from the company’s established, uniformly applied policy creates a presumption of pretext. Proving that the policy was applied consistently to all workers is the employer’s primary defense against a wrongful termination claim.
Alternatives to Termination
Before deciding to terminate an employee for frequent absenteeism, employers should explore proactive strategies aimed at managing the situation and retaining talent. Implementing a formalized Performance Improvement Plan (PIP) focused specifically on attendance can provide a structured opportunity for the employee to correct their behavior. The PIP allows the employee to understand the serious nature of the issue and the necessary changes required for continued employment.
Companies might also consider offering voluntary leave programs or flexible work arrangements to bridge temporary gaps in an employee’s ability to maintain attendance. Conducting stay interviews, which involve candid conversations about what would help the employee succeed, can uncover underlying issues that could be resolved without resorting to punitive measures. Reviewing whether the existing attendance policy is unrealistically strict or contributing to turnover is also a prudent practice.