It only makes sense that if you are sick and have to miss work, the company that employs you and to which you have dedicated your time, should honor that dedication with time off to get well. Whether the time off is paid or not, the time to get better should be granted, right? Well, not in all cases. Under state and federal law, few legal protections are ironclad for employees who miss work for illness. If attendance is deemed essential, employers have little obligation to extend leave to employees on the job less than a year. What this means is if you are on the job for most of, but less than a full year, which by many standards makes you a long-term or senior employee, your company can deem your attendance for any reason crucial to carrying out your job, and fire you if you miss work for any reason.
USA Today tells the story of Tom McLaughlin, a floor manager at Bell, Inc., who lost his job after being hospitalized for three of five missed days while being treated for a potentially life-threatening flare-up of an infection in two sores on his right leg. He was at the company for ten months, less than the required year, and his attendance was deemed crucial for his job. Although he hadn't taken a sick day in 50 years throughout his career, the hospitalization was unavoidable and he had to miss work.
There are a few states, along with the District of Columbia and a handful of cities, which have laws mandating paid sick days. How all states handle paid and unpaid sick days is varied, to say the least. What about the Family and Medical Leave Act? Those who work for companies with 50 or more employees can apply for unpaid time off under the federal Family and Medical Leave Act, but they qualify only after a year on the job. Hospital stays count, but not every sort of illness does. That doesn't help those that are like Tom McLaughlin, however. Also, companies in almost all states that adopted a "Termination at Will" policy so they can terminate employees without a specific reason, as long as it isn't ruled as discriminatory.
All states will allow those who believe they've been discriminated against because of a disability to file an administrative charge of discrimination with the state's Department of Labor or similar body. These claims can be hard to prove. In more than 90 percent of cases brought before the Nebraska Equal Opportunity Commission, the Commission finds there is no reasonable cause to believe discrimination occurred. No matter what the administrative finding is, however, an employee who believes he or she was discriminated against due to a disability can file a complaint in state or federal court.
Information from article by John Hult, (Sioux Falls, S.D.) Argus Leader "A boss often can fire you while you're hospitalized"
Call Burnett Legal Group at (402) 810-8611 or contact us online to schedule a free consultation.