Can I be fired for taking a sick day?

[weph99]

What is the name of your state?MINNESOTA

My best friend has an 11 month old daughter, as well as a 6 year old son. Her daughter isn't sick very often, just has the "usual" infant illnesses crop up. However, her son was diagnosed a little over a year ago with epilepsy. He doesn't have seizures very often, but when he does he is unable to go to school, for he is completely physically exhausted the next day and is very difficult to be woken up. If he is brought to school, my friend is called soon by the nurse that she needs to pick up her son because he is asleep at his desk. My friend is a department manager in a large retail chain. She recently had to call in sick three days in a row, she had a bug that was going around and had a 102+ degree fever. She really should have taken more days off than just the 3, but did end up going in to work still sick. On the second day after returning to work, her boss requested to meet with her, and told her she would soon be "written up" and could be put on "probation", with possible termination, if she continues to call in sick. She said it doesn't not matter what the sick day is taken for, whether it is my friend who is ill, or one of her children, regardless of the fact that the son has epilepsy. She said my friend still should have come in even when she was sick. They have recently cut back the hours at this particular store, so mainly those who are there during the day are the department managers, and very few of the entry-level employees. My friend is concerned, not only for her own health, but for the health of the few employees who are at work, getting them sick if she goes in with something such as the 102 degree temp. She is also concerned, because she really doesn't have other options when her son has a seizure other than to stay home with him. She did take 12 weeks of the Family Medical Leave Act when she was on maternity leave early 2004 with her daughter. I feel that irregardless if she is "eligible" for the FML again (we haven't determined yet if her company goes by a fiscal year or calendar year) she should be able to use her sick days when she is sick, and when her son needs to be cared for. I am also furious that after almost 8 years of working at this job with a good record, they claim they would be able to fire her for not coming in when her son has a SEIZURE, for God's sake!! We would like to find out what her options are, if it is legal for them to fire her, and if they do fire her and it is NOT legal, what she can do. Are you able to sue to get your job back, get money for compensation, etc? She is married, but her husband makes more money so it makes more sense for him to stay at work. Also, he is the child's step-father, and her son wants MOM when he is sick, as well she is the one who handles his complicated medication regime. She really does not take "excessive" time off, I would say it comes to one or two days every couple of months, if even. I worked at the same place years ago and so am really furious they are trying to do this to her, she is really just beaten down and doesn't know what her options are. Money would be an issue as well, and it may not be feasible to hire a lawyer if she IS fired. I would appreciate any feedback, if anyone has any clue what the options are here, sorry this is so long but we really are mad!!

 

[Beth3]

If your friend has used up all 12 weeks of her FMLA entitlement at present, then the employer does not have to extend any more absence time to her. It doesn't matter whether the company offers paid sick days or not. Sick days are not a "gimmie."

That said, I do feel for your friend. She's between a rock and a hard place.

It sounds like her son's epilepsy is fairly severe (the poor little guy) and thus falls under the ADA. She is also "covered" by the ADA to the extent that she's a caregiver to someone with a disability. Your friend needs to talk to her boss or someone in HR and inform them that she needs to discuss "reasonable accommodation" possibilities. And she specifically needs to use that language.

I can't say what will constitute a reasonable accommodation for her employer. Your friend still must be able to perform the "essential functions" of her job and regular attendance is almost always an essential function in any job. But she at least needs to have that dialog.

In the meantime, I suggest mom and step-dad share the child care if someone has to stay home with him. Step-dad may make more money per hour but mom is about to lose her job if she continues to be absent.

 

[cbg]

The short answer to your question is yes, an employee can be fired for taking a sick day.

While there are certain protections an employee has, such as FMLA, there are no circumstances whatsoever in which an employer is required to allow unlimited leave time, no matter how legitimate the medical reason. Sooner or later the employer is permitted to cut the employee loose and hire someone who is able to be at work.

Once FMLA has expired, there are no circumstances whatsoever in which it is mandatory for the employer to provide additional leave time. It doesn't matter how strongly you feel that they should, it's not required by law. An employer CAN offer additional time if they choose to, but it is not required.

You say she exhausted her FMLA time in 2004. Depending on what method the employer uses as their "12 month period" she may be due to become eligible for FMLA once again in the near future. However, until that happens, she has NO legal expectation of job protection no matter what the medical reason and no matter how legitimate it is.

Until she becomes eligible for FMLA again, there is only one option I can think of for her and it is NOT a sure thing. It MIGHT be that IF her son's condition qualifies under the ADA (which would have to be looked at on a case by case basis) that MAYBE allowing her to take time to be with him MIGHT be considered a reasonable accomodation. However, this is a long shot at best, since many courts have ruled that attendance is an essential function of most positions. There have been cases when a SHORT leave has been considered a reasonable accomodation, but NOT unlimited leave.

 

[weph99]

Thank you both for replying so quickly! She is going to ask her boss for a meeting, and ask her what she feels her options would be if she needs to take a sick day in the future. I will have her use the "reasonable accomadation", that language feels to me like it would convey to her boss that she is open and willing to suggestions! I hadn't heard of the ADA, I assume it is American Disability Act or something along those lines? We will have to look into that, as I imagine her son would fit under that as his case of epilepsy is considered pretty severe. If she is eligible again now for the FML, and needs to call in to use a day or two of that, can she be fired for that? I didn't understand that clearly. I should also mention, a coworker of hers was recently diagnosed with Diabetes, and has been calling in sick quite often. When she brought this up in her meeting with her boss, the boss said since he has diabetes, they are treating his absences completely different than other employee absences. My friend offered to bring in a doctor's note for her illness and her sons, and her boss said that that wouldn't make a different, any absence is considered an "unescused" absence. We can't for the life of us understand how Diabetes is considered as a valid "excuse" but an epileptic seizure is not. This employee has not filed for the FML at all, he just calls in for unpaid absences. Thanks again for your replies!!

 

[cbg]

ADA stands for the Americans with Disabilities Act. The Act is designed to level the playing field for the disabled, and family members count too. There is NO condition, other than HIV/AIDS, which is automatically covered. In each and every other case, the condition has to be looked at on a case by case basis, and the criteria for protection is that the condition must interfere with a major life function. It's not going to be how severe his condition is; it's going to be whether or not it interferes with a major life function. Once it has been brought to the attention of the employer, the employer's responsibility is two-fold; one, to determine whether or not the condition qualifies (and for which they are entitled to receive medical verification) and two, whether or not there is a reasonable accomodation that will permit her to accomplish the essential functions of her position. What is considered a reasonable accomodation will vary with the individual, the condition, the job and the employer (since resources vary). The employer is required to include her in making these determinations.

Although a reasonable accomodation may include removing non-essential functions, changing her shift, giving her a flexible schedule or putting her in a different, more flexible position (although it need not include any of these things - it depends on what positions are available and her qualifications) I want to reiterate what I said before; it is extremely unlikely that allowing her unlimited days off to deal with her son's illness would be considered a reasonable accomodation. Attendance is considered an essential function in almost every position.

Here are a few things that the employer is NOT required to do:

1.) Create a new job for her
2.) Put her into a position for which she is not qualified
3.) Bump someone else out of their position in order to put her into it
4.) Accept a performance standard that would be unacceptable in an employee not covered under the ADA
5.) Allow her additional absences or tardies over and above what other employees are entitled to, unless specifically included in the accomodation

If a reasonable accomodation that works cannot be found, the employer CAN legally terminate her employment.

The ADA does NOT protect her from termination for cause or for poor work performance. It is her responsibility to keep her work standard up and to adhere to company policies. Both she and the employer are responsible to keep their end of the matter up; if the employer suddenly decides that they will no longer grant an accomodation (which is working and which is still needed) she can file a complaint with the EEOC; if she lets her work slide, violates company policy or does not follow her responsibilites under the accomodation (for example, if she is allowed to come in late one day a week and she starts coming in late two or three days a week) the employer can legally terminate her.

When and if she becomes eligible for FMLA again, she will once more have up to 12 weeks of protected leave available to her. However, she can't just start calling in again; she has to go through the whole procedure of applying for FMLA, getting the doctor to complete the forms, submitting them to HR (or whomever is appropriate) and getting approved. If intermittant FMLA is approved, she is still responsible for following company call-in procedures and letting them know when she calls that this is previously-approved FMLA leave. Also, ONLY absences for the condition certified under FMLA will be protected; if she is granted FMLA for her son's epilepsy and she calls in with a headache of her own, that is NOT protected and they CAN take whatever action they feel is appropriate.

She shouldn't worry about the employee with diabetes and his absences. For one thing, they are under no obligation to treat every employee exactly the same and for another, for all she knows that employee's absences are also being covered under intermittant FMLA - that's not information that can or should be transmitted to the office as a whole. If the employer knows that an employee has a condition that would qualify under FMLA, the employee qualifies and has FMLA time available, they are obligated under the law to protect those absences whether the employee ever formally applies for FMLA or not. She has no way of knowing what conversations he has had with HR.

(BTW, the same does NOT apply to the ADA.)

 

[Katy W.]

Your friend called in sick with a bad cold.

Under the ADA an employer should make reasonable accommodation for an employee who is disabled (or is the caregiver for someone who is disabled) for absences that are related to the disability. The trigger incident here is not related to a disability.

Her employer's statement that she would be in trouble with her attendance whether or not her son's epilepsy was the cause of the absence may or may not be lawful, depending on whether or not her son has a disability and whether occasional time off work is a reasonable accommodation. However, just the fact that the employer made the statement is not the same thing as actually denying her accommodation. It is not illegal to intend to discriminate.

As Beth said, her first step is to go to HR and identify herself as a caregiver of a person with a disability, and then HR will start the interactive process to request reasonable accommodation.

She still isn't off the hook for staying home with a cold, though.