Can Your Boss Force You To Work While Sick?

Getting sick is bad enough. Your employer can make the situation worse if they insist you come to work while sick. Making you work while sick could also spread the illness to your co-workers.

As an employee, it’s essential to understand your employee rights and your options if you get sick while working. This article covers the legal protections employees have when they get sick and how to deal with employers.

Is Your Employer Legally Required to Provide Paid Sick Leave?

The answer to this question depends on where you live. No federal law requires employers to provide paid sick leave for their employees. At the state level, a few localities and states (including California, Maine, and the District of Columbia) require employers to provide paid sick leave.

In states that do require employers to provide paid sick days, there are different requirements. This depends on the size of the company and the type of work involved. However, most states don’t require paid sick time.

Are You Protected from Termination if You Take Extended Time Off?

Most private-sector employees in the United States work at will. “Employers do not have to have a performance-based reason for an adverse employment action — or even a true reason,” says Christopher Lenzo, an employment law attorney at Lenzo & Reis in Morristown, New Jersey.

Lenzo illustrates at-will employment with an example: “You could be wearing a white shirt, and your employer could say, ‘Well, we’re firing you because you’re wearing a blue shirt.’ You say, ‘No, it’s a white shirt!’ It doesn’t matter as long as the real reason is not unlawful, such as discrimination or retaliation.”

If you are an at-will employee and take extensive sick leave beyond company policies, an employer could let you go. As Lenzo says, “The big thing that people need to know is that just because they’ve been treated unfairly doesn’t mean it’s illegal.” As long as the employer does not violate specific federal or state laws, employers can fire employees at any time.

Even with at-will employment, a couple of federal laws protect employees from getting fired if they have to take an extended period of sick time. Whether these protections apply to you will depend on your specific circumstances.

Protections Under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid leave per year to deal with serious medical conditions or care for a family member. FMLA leave is unpaid but you won’t lose your job for a covered absence. The FMLA applies to:

• Federal, state, and local government agencies
• Public and private elementary and secondary schools
• Companies with 50 or more employees

If you work for one of these covered employers, there are additional requirements to qualify. To get FMLA protection, you must have:

• Worked for the employer for at least 12 months
• Worked at least 1,250 hours during that period
• Work at a company location with at least 50 workers in a 75-mile radius

If you meet these requirements, then you may take up to 12 weeks of unpaid leave per year for the following situations:

• The birth of a child or placement for adoption or foster care
• Caring for an immediate family member (spouse, minor, child, parent) with a serious health condition
• Handling the employee’s own serious health condition that makes them unable to work

If you need to take time off from work due to pregnancy complications, this time can falls under the 12 weeks for medical or family-related leave. If you are in the military, additional FMLA provisions apply specifically to military families.

Many states have their own versions of the FMLA that provide more robust coverage. Check with your state’s leave laws to see the requirements.

Protections Under the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) defines a disability as a physical or mental impairment that substantially limits a person’s major life activity. Major life activities includes many work duties.

The ADA prohibits disability discrimination in hiring, training, promotions, and other employment features. Under the ADA, employers have to make reasonable accommodations for employees’ known physical or mental impairments. Sometimes, giving extended time off might be a reasonable accommodation for an employee’s disability.

While the ADA does not directly provide extended time off, this may be a reasonable accommodation that your employer should provide in some situations. Talk to an employment lawyer with experience in disability discrimination to understand your options.

State Workers’ Compensation Laws

State laws require most employers to carry worker’s compensation insurance to cover work-related injuries. State law governs workers’ compensation, and the specific rules vary by state.

Your employer cannot fire you in retaliation for filing a workers’ compensation claim. However, your employer may be able to fire you for other reasons while you are on workers’ compensation leave. Your employer can hire someone else to do the job if you miss work. Speak with an employment lawyer about the workers’ compensation laws in your state.

Occupational Safety and Health Administration (OSHA) Standards

The federal Occupational Safety and Health Administration (OSHA) and other state regulatory agencies require employers to provide a safe work environment for their employees. It could be a health risk for employers to force sick employees to show up when they are contagious and could spread the illness.

What Protections Does My Company’s Sick Leave Policy Give?

As an employee, you should get familiar with your company’s time off policies. Most employee handbooks include guidelines to call out sick, such as:

• What kind of time off to take
• Who to contact on short notice
• Getting someone to cover your shift
• Whether you need a doctor’s note
• Giving your supervisor or human resources notice

Depending on your employee benefits, you may have separate sick leave or paid time off (PTO) to use for any reason. If you have exhausted your paid sick leave, you may have to take vacation time. If you have used up all your paid time off and need to stay home because you’re sick, you may have to take unpaid time off.

If your supervisor pressures you to come in or not take sick leave, consider whether your supervisor is aware of company policies or is ignoring them. If you think your supervisor is violating sick leave policies, you could speak to your supervisor or notify a human resources representative. If your employer continues violating sick leave policies, consider contacting your state’s labor board or an employment law attorney to weigh options.

Questions for an Employment Attorney

If you think your employer violated sick leave laws or wrongfully terminated you, get legal advice from a qualified employment law attorney. Many attorneys provide a free initial consultation to prospective clients. These meetings allow the attorney to hear the facts of your case and for you to determine if the attorney meets your needs. To learn more about this area of law, see our overview of employment law.