Can You Be Fired For Calling In Sick -- Even With A Doctor's Note?

sick note miss workI recently received this question from a reader:

Q: I have missed about a week and half of work due to being really sick. I can barely talk and have no voice. Keep in mind here my job is a telesales rep. I call people all day. Are they legally able to fire me even though I have a doctor's note every day I missed?

People ask me this all the time. Can you really be fired for being out sick even though you have a doctor's note? One state, Connecticut, and four cities -- Seattle, Portland, San Francisco and Washington, D.C. -- have paid sick leave laws. A fifth city, Philadelphia, is voting on a measure Thursday, but if you don't live in any of these places, you could possibly be out of luck. It depends on how long you've been employed, how many employees your company has, and how sick you are. Here's what you need to know about your legal rights when you call in sick.

Missing one day: If you're out sick for a day with, say, a cold or something minor, you have zero legal protection. The laws that protect you for illness only protect you if you have a serious medical condition or an illness relating to a disability. Doctor's note or no, if you live anywhere but Montana you're in an at-will state, meaning you can be fired for any reason or no reason at all. That includes being sick. In this case, you missed a week and a half, so your condition is probably considered serious. But that's not the end of the story. You still might not be protected.

More: Survey: Craziest Excuses for Calling in Sick

Small employer: If your employer has fewer than 15 employees, you are not protected under the Americans With Disabilities Act, so even if you are out sick for a disability, such as chemo, surgery or other necessary treatment, you have no protection unless your state or local laws cover smaller employers. If your employer has fewer than 50 employees within a 75 mile radius of your workplace, you won't be covered under the Family and Medical Leave Act. If you have a serious medical condition, you may be at risk of losing your job when you come back.

Serious medical condition: If your employer has at least 50 employees within a 75 mile radius of your workplace, if you've worked at least a year, and if you have worked at least 1,250 hours in the past year, you are entitled to up to 12 weeks of leave for a serious medical condition. However, "serious" is pretty limited. The Department of Labor explains "serious" this way:
  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

In this case, you saw a doctor and were out for more than three days, so if you meet the other requirements of FMLA coverage, your employer can't fire you for missing work.

More: 8 Ways Employers Can Discriminate Against Workers - Legally

Disability: Assuming your employer has at least 15 employees, they're covered under the Americans With Disabilities Act. If your illness related to a covered disability, then your employer must grant a reasonable accommodation for your disability. A reasonable accommodation could include time off for a disability-related illness or treatment. The EEOC explains the meaning of a covered disability this way:
  • A person can show that he or she has a disability in one of three ways:
  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
  • A person may be disabled if he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).

In this situation, if the strep was caused or exacerbated by a disability that suppresses your immune system, such as HIV or cancer treatment, then your employer might have to accommodate you. Otherwise, strep is not a disability that would be covered under ADA.

In most cases, you can be fired for being absent even if you have a doctor's note. If your employer is threatening to fire you if you miss work, then show up on a stretcher if you have to. It beats losing your job.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.

Lunchtime Live: Ask Donna Ballman - Reasonable Accommodation

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I took a Friday off to go to doctor because I had metal in my eye and I couldn't see to drive company vehicle then after er sent me to specialist to scrape my eye boss called and told me to take Monday off also is this legal for him to do

March 15 2015 at 7:42 PM Report abuse rate up rate down Reply

It is unbelievable to me that in a country such as this there are no more protections for sick employees. It is actually scary because of the health ramifications it can carry. I am facing termination because I missed one day of work because of a terrible flu. I had 102 degree fever, bad cough, lots of phlegm, body aches... It was difficult to even get out of bed. I messaged my boss explaining my concern, especially because it was supposed to be chilly and rainy outside (job is outdoors) and she said to skip work but later that day she messaged me back saying she doesn't think I should keep working there because the job is outdoors and I should be able to work no matter the weather or my condition. I work in Times Square. I come in direct contact with thousands of New Yorkers and tourists from all over the world every day. If I am sick, I can potentially pass around a disease to thousands of people that can carry it with them all over the world. This time was the flu, but if unknowingly I had been dealing with something worse and went to work anyways, you can see how easily you can start a global epidemic just because of lousy and negligent laws and lack of employee protection. Employees are afraid of getting fired so they go to work anyways, risking the health of many people.

September 14 2014 at 7:14 AM Report abuse rate up rate down Reply

Thank you for the article. I'm still a little confused, however. I was recently diagnosed with Grave's disease, and I will be seeing an ophthamologist and possibly retina specialist soon for the beginning stages of Grave's eye disease. Needless to say, this has been a huge emotional, psychological, and physical burden. Recently, my primary doctor instructed me to go to the ER for stabbing migrains and constant dizzy spells that made it impossible to function. I was then put on beta blockers to bring my heart rate down from 140 bpm, and it seems like it may be helping other symptoms for now until I see the endo next week. Unfortunately, I've only been employed with my current employer two months, and I've already had to call off a few days (with a doctor's note) and will need to take off more for future appointments. I'm doing everything to schedule them as late in the day as possible and even scheduling on Saturdays when I can. My employer has slightly more than 15 employees. Based on this info, it sounds like I may still get fired?

April 02 2014 at 9:26 AM Report abuse rate up rate down Reply
Adam C Smith

I work in a restaurant and even though it's a health code violation, most of us know if we call out sick we're fired. Go into work and barf on everything. That'll teach them. Or do what I do when I get a migraine: take some good pain meds and go into work high.

December 11 2013 at 7:33 PM Report abuse rate up rate down Reply

Hello my good friends please do not see this strange cause it my life story about my healing, i was having HIV for good 6yrs. Things were not working fine for me due to my health status i know longer have friends know lover it even takes time before my family co-operate with me due to this i tried all possible means i can to get this devilish sickness out of my body i went to hospitals hierarchies and other heath organization but all remains the same till yet i never gave up cos i was not born with this illness so i decided to take it over to the internet to see if i could get remedy, on my search i saw a testimony of a woman, she said she was also having a terrible sickness for over 3yrs but now she is healed i was surprise at first when i saw her test so she wrote a name dr SOLABO and also gave his email id so i mailed them which is ( i told them about my problem and after the processes he told me that am healed but i never believed he told me to go and confirm it from the hospital were i have been taking treatment still i never believed also although he gave me evidence that the sickness was gone.
Finally i decided to go for check up and to my surprise my doctor said the sickness was know longer there with thought of joy i started shearing tears.
My friends today am now married bless with 2kids, so if you have any sickness kindly email ( sir i will forever remain in you debt.
Thank you sir am grateful

June 18 2013 at 11:11 AM Report abuse rate up rate down Reply

Can a employer ask where my parents are from and if I was ever involved in gangs and If I had ever sued any of my employers

June 13 2013 at 2:37 AM Report abuse rate up rate down Reply
Lu Ann

When I was hired in to my work, I had to sign a secrecy agreement re: my pay, company technology, our top secret equipment & innovation, and the products we used there, and also in this agreement was that I was not allowed to quit my job without 3 months advance notice...not only that, but the company could not terminate my job without notifying me 3 months in advance. When our company moved it's production lines to another country....suddenly, there was no agreement to be found!! Imagine that? There were only a handful of us that had to sign said agreement....after 20 years they were suddenly all lost

June 12 2013 at 9:38 AM Report abuse +1 rate up rate down Reply
daniels choices

If no worker or other employee can ever call in sick without being fired, and Al Qaeda finds out, then the Islamist fundie terrorists only need to read this article. A single patient zero with a deadly plague and the whole world will come to an end in thirteen weeks! Obviously therefore, job security is both national and global security. Also, a sick worker can still infect a one percenter. It has happened before to the previous America.

June 11 2013 at 11:56 AM Report abuse rate up rate down Reply

What is sick leave for if it can't be used to recover from an illness that would prevent one from performing his or her job effectively and to prevent infecting coworkers? The flu, strep, severe sinus congestion, diarrhea, and many other illnesses do not fall under the category of "disability", but the article above makes it sound like one cannot take sick leave (or even leave without pay in the absence of sick leave) without the risk of being fired. A good policy is to call one's supervisor as soon as practical to explain the situation and get concurrence that staying home is the best option for all.

April 17 2013 at 12:55 AM Report abuse +1 rate up rate down Reply
Debbie E. R.

How about a worker who is out intermittently for over a month for a "cat allergy"?

April 16 2013 at 12:54 PM Report abuse rate up rate down Reply

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