Can Your Boss Force You to Work While Sick?
Understanding your rights as an employee when you get sick
on June 21, 2022
Getting sick is bad enough. Your employer can make the situation worse if they insist you come to work while sick or deter you from taking sick leave.
Taking time off can also bring financial burdens if you don’t have paid sick leave.
As an employee, it’s essential to understand your rights and the different options you have if you get sick while working. This article covers the 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.
At the federal level, there is no law requiring employers to provide paid sick leave for their employees.
On the state level, a few localities and states (including California, Maine, and the District of Columbia) require employers to provide paid sick leave, but most do not.
In states that do require employers to provide paid sick leave, there are different requirements and exceptions, such as how big the company must be or the kind of work involved.
If you live in one of the states or cities that requires paid sick leave, then your employer is legally required to provide it. However, in most states, employers are not legally required to provide paid sick leave.
Are You Protected from Termination if You Take Extended Time Off?
The vast majority of private-sector employees in the United States work at-will. As employment law attorney Christopher Lenzo says, this means “employers do not have to have a performance-based reason for an adverse employment action–or even a true reason.”
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.”
Even with at-will employment, there are a couple of federal laws that can 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.
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 their own serious medical conditions or those of a family member. This leave is unpaid but helps protect you from losing your job for an extended absence.
Does the FMLA apply to you?
The FMLA covers:
- 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 a couple of requirements you need to meet:
- You must have worked for the employer for at least 12 months
- You worked at least 1,250 hours for the employer during those 12 months
- You work at a company location where at least 50 people are employed within 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 or placement of a child for adoption or foster care
- Caring for an immediate family member (spouse, minor, incompetent child, parent) with a serious health condition;
- Handling the employee’s own serious health condition that makes them unable to work
It’s important to note that if you need to take time off from work due to pregnancy complications, this time can be counted against the 12 weeks for medical or family-related leave.
If you are in the military, there are additional FMLA provisions specifically for military families.
Many states have their own version of the FMLA that provide more robust coverage. It is a good idea to look into your state’s leave laws to see the requirements.
The Americans with Disabilities Act
Under the Americans with Disabilities Act (ADA), a person has a disability if they have a physical or mental impairment that substantially limits a major life activity. Major life activities include work, education, and transportation.
In the employment context, the ADA prohibits discrimination because of disability in hiring, training, promotions, and other employment features.
The ADA also requires employers 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. Speaking to an employment lawyer with experience in disability discrimination can help you understand your options.
State Workers’ Compensation Laws
State laws require most employers to carry worker’s compensation insurance to cover possible work-related injuries. State law governs workers’ compensation, and the specific rules vary by state.
You cannot legally be fired in retaliation for filing a workers’ compensation claim. However, due to at-will employment, your employer may be able to fire you for other reasons while you are on workers’ compensation leave. For example, your employer may face layoffs, need to fill the position, or have job performance-related reasons.
Speaking with an employment lawyer can help you understand workers’ compensation laws in your state.
What Do Your Company’s Sick Leave Policies Say?
One of the most important things you can do as an employee is to get familiar with your company’s policies. Most companies have guidelines for taking sick time off, such as:
- Giving your supervisor or human resources representative advanced notice of absence
- Who to contact on short notice
- Whether you need a doctor’s note to document the illness
- Getting someone to cover your shift or responsibilities
- What kind of time off to take
Depending on your employee benefits, you may have separate sick leave and vacation or generic paid time off (PTO) that can be used 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.
It’s important to note that if you are an at-will employee and take extensive sick leave beyond company policies, an employer could be in their rights to 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.
However, if you are following your company’s policies, you should be in the clear. If your supervisor pressures you to come in or to not take sick leave, consider if your supervisor is aware of company policies or if they’re ignoring them.
If you think your supervisor is violating sick leave policies, you could speak to your supervisor directly 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.
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.
Making employees come in if they have a common cold would not violate this requirement. However, if an employer forces employees to show up when they are very sick or consistently puts others at risk of illness, there may be a violation.
Questions for an Attorney
If you think your employer violated sick leave laws or wrongfully terminated you, getting legal advice from a qualified employment law attorney is essential for pursuing the best course.
Fortunately, many attorneys provide initial free consultations 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 see whether an attorney is a good fit, ask informed questions such as:
- What is your fee, and what billing options do you offer?
- What is your experience as an employment lawyer?
- Is a lawsuit the best course of action against my employer?
- What are my state’s laws governing sick leave and compensation?
- What kind of damages could I get in my case?
Finding the Right Attorney for Your Needs
It is essential to approach the right type of attorney—someone who can give you legal help through your entire case. You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
If your employer forced you to work while sick and you are wondering about your legal options, consider looking for a lawyer practicing employment law.