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Medical leave: Can I be fired for not coming to work because I was sick?

The short answer:  Yes.  There are many circumstances in which your employer can fire you for not coming to work due to medical reasons.  There are also circumstances in which it is illegal to fire someone for being absent due to a medical reason.  Here are a few best practices:

Ask for leave.

As early as possible, submit a leave request.  Depending on your employer and location, you may have several options.  Many employers have policies that provide sick leave or medical leave.  Just make sure to follow the employer’s leave request procedure.  You may also be able to request leave under the federal Family and Medical Leave Act (FMLA) or a similar state law, such as the DC Family and Medical Leave Act.  In general, your employer can’t fire you for taking approved FMLA leave.  There may be a third option if your absence is related to a disability.  If you work for an employer covered under the Americans with Disabilities Act (ADA), the Rehabilitation Act, or a similar state law, you may be able to request leave as a reasonable accommodation for your disability.

Get approval in writing.

Many employers have policies that allow employees to take sick leave or medical leave.  However, those policies generally give the employer the power to deny leave requests.   An employer may be able to deny your request because it wasn’t submitted on time or didn’t include necessary information.  Your employer may also deny your request because you failed to provide required medical documentation.  Make sure your employer actually grants your leave request.  If possible, get approval in writing.

Contact work ASAP.

If you can’t go to work because of an unplanned medical reason, contact your supervisor as soon as possible.  We’ve had more than a few cases where employees were fired for being AWOL or failing to follow leave procedures due to an unforeseen medical absence.  The employees were out of work for several days or more but didn’t let their supervisor know why until they returned to work.  Your employer may hold you responsible if you could have contacted them during your absence but failed to do so.  But what if you couldn’t call work because you were incapacitated?  The harsh reality is that unless the employer has reason to know why you’re absent, you may be still be fired.

Identify an emergency contact.

It may be helpful to ask a family member or friend to be your emergency contact.  Make sure your emergency contact and your supervisor have each other’s phone number and email address.  If you’re unable to contact work due to a medical emergency or some other unforeseen event, your emergency contact can do so for you.  Having an emergency contact is a good idea even for planned absences.  There might be complications during surgery, or your recovery might take longer than expected.  Before you go out on leave, give your supervisor your emergency contact’s information and ask your supervisor to call your contact if you can’t be reached.

Were you fired due to a medical absence?

If you were fired due to a medical absence, you may be able to bring a claim for wrongful termination.  Depending on the specific facts and circumstances of your case, you may need to take action within 30 days of your firing.  Alan Lescht and Associates handles cases involving wrongful termination, disability discrimination, and similar employment issues.  We represent federal government employees around the world, as well as well as clients who work for private-sector employers and state and local governments in Washington, DC, Maryland, and northern Virginia.  We’ll review the facts of your case, determine whether you can bring a claim, and discuss how to proceed with your case.  Contact us to schedule a consultation.

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