CAN MY EMPLOYER FIRE ME FOR BEING SICK DURING THE COVID-19 PANDEMIC?
Can your employer fire you for being sick? The short answer is probably yes.
This question is of particular concern to employees during the ongoing Covid-19 pandemic, as employers seek to have their employees return to the workplace. Uncertainty abounds about the legal protections available to employees who are concerned that they may be infected with the coronavirus, or who are concerned that the customers with whom they interact might refuse to wear masks or take other steps to protect employees’ health.
In general, an employer can fire you for poor attendance and for any other reason, as long as they don’t fire you for an illegal reason. If you are frequently absent from work–especially if those absences tend to occur on Mondays and Fridays–then yes, your employer can probably legally fire you for those absences.
Doesn’t the Family and Medical Leave Act (FMLA) Allow Me to Take Time Off When I’m Sick?
It might! The Family and Medical Leave Act of 1993 (FMLA) requires employers to allow employees to take unpaid leave under certain circumstances, which this article describes in detail below.
The FMLA does not require your employer to return you to the exact job you had before taking leave, but you must be allowed to return to a similar position with similar pay, hours, and duties.
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The FMLA prohibits employers from interfering with, restraining, or denying employees’ right to take leave. If your employer is visibly annoyed by your requests for FMLA leave, or begins to micromanage you or find fault with your work shortly after you request FMLA leave, your employer might be illegally retaliating against you in violation of the FMLA.
Does the FMLA Apply to Me? To My Employer?
The FMLA only applies to employers with 50 or more employees, so if you work for a small company, it may not be bound by the FMLA. Some states have statutes that provide greater protection than the FMLA, but this article focuses on protections under the federal FMLA.
And the FMLA protections only apply to you after you’ve been employed by your current employer for at least twelve months and worked 1,250 hours or more over that period. For example, if you’ve only worked for your current employer for eight months, you are not eligible to take job-protected leave under the FMLA.
If you and your employer are covered under the FMLA, you may take up to twelve weeks of unpaid leave from work during a twelve-month period for any of the following purposes:
- the birth of your child;
- to care for your new baby, newly adopted child, or newly placed foster child;
- to care for your family member who has a serious health condition;
- to care for your own serious health condition.
What Is a “Serious Medical Condition” under the FMLA?
The FMLA provides job-protected leave to care for your own or a family member’s “serious health condition.” Under the FMLA, a “serious medical condition” has a very specific definition-it is a health condition that involves either: (1) an overnight stay in an in-patient medical care facility, and subsequent treatment stemming from the in-patient care; or (2) continuing treatment by a healthcare provider.
“Continuing treatment” under the FMLA also has a specific definition, and includes the following:
- a period of incapacity for more than three consecutive days (72 hours) and at least two in-person treatments by a health care professional;
- a period of incapacity for more than three consecutive days (72 hours) and at least one in-person treatment by a health care professional, where the treatment results in a regimen of continuing treatment;
- periods of incapacity due to pregnancy, childbirth, or for prenatal care;
- periods of incapacity and treatment for chronic serious health conditions; and
- periods of absence to receive multiple treatments from a health care provider and recover from those treatments.
“Continuing treatment” may include a doctor’s appointment to determine if a serious health condition exists, and to evaluate the condition.
For example, an employee suffering from the flu who makes a second in-person visit to her physician within a 72-hour period, during which the physician performed a physical examination and drew blood for a blood test, is considered to be undergoing “continuing treatment” under the FMLA.
By contrast, if you make only one visit to your doctor to get an anti-viral shot to lessen your flu symptoms, this will likely not be considered “continuing treatment” under the FMLA-even if , and you will therefore not be entitled to job-protected unpaid leave.
If you request to take leave for only two days, or fail to identify how long your leave is expected to last, your leave request will likely not be protected under the FMLA, because your employer will be unable to confirm that your “period of incapacity” will last for more than 72 consecutive hours.
“Period of Incapacity” Sounds Really Serious! What Does That Mean?
Under the FMLA, “incapacity” is defined as an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” So if your medical condition makes you unable to work, you are likely to be considered “incapacitated” under the FMLA.
However, you are not required to be bedridden to be considered “incapacitated” under the FMLA! For example, one court found an employee who was unable to work in his current job due to a serious medical condition to be “incapacitated” under the FMLA, even though the employee was able to walk to a nearby playground and care for his young children on days we claimed to be unable to report to work. You do not need to be confined to your bed to be considered “incapacitated” under the FMLA!
How Do I Request FMLA Leave? Do I Need to Mention the FMLA specifically?
You are not required to specifically request that your leave by covered by the FMLA-but it is better if you do. An employee must put an employer on notice of her need for FMLA leave. To do this, you must provide enough detail about the nature of your medical condition and the likely duration of your absence, so that the employer can determine that the absence may qualify as protected under the FMLA.
Do NOT just call in sick! You must describe your symptoms, condition, and explain how long you expect to be absent from work! Otherwise your employer will not have sufficient notice of your intent to use FMLA leave.
When Should I Request FMLA Leave?
You should request FMLA leave as soon as you think you may need it. If your need for leave was unforeseeable, you should provide notice to your employer as soon as practicable.
If you are requesting FMLA leave for the birth of your child, you should give at least thirty days’ notice of your expected leave dates. Obviously, if you have complications with your pregnancy that require you to begin your leave before you expected, then you are only required to give notice as soon as practicable after you learn of your need for more immediate leave.
My Employer Requested a Medical Certification. What is That?
A certification is a form from your (or your family member’s) health care provider that describes the details of the serious medical condition, the date on which your serious health condition began, and the likely duration of the condition. The certification must be authorized by your doctor. In some cases, certifications completed by doctors’ assistants have been found insufficient. The doctor who completes the certification must base it on a recent examination and his or her own analysis of your condition.
You must submit this certification within fifteen days of your employer’s request. This deadline is incredibly important! Many employees give up their FMLA job protection by failing to provide the certification within the 15-day deadline. It is especially difficult for employees who are dealing with their own serious medical condition to meet this deadline, but it is vital to do so!
If your employer needs more information than your medical provider gave in the certification, it should ask you for it. If you have difficulty getting the information from your provider, document in writing (email is best!) your efforts to obtain the information and tell your employer before the 15-day deadlines passes what you have done to attempt to get the information.
My Employer Says My Medical Certification Isn’t Good Enough. What Now?
Your employer may request a second or third opinion regarding your certification. It’s annoying for you to have to jump through so many hoops when you are dealing with your or your family member’s medical condition, but this is what the FMLA requires.
If you submit an incomplete or vague medical certification, you are entitled to seven calendar days to correct the deficiencies. Your employer must tell you what additional information is required and must allow you seven calendar days to provide it.
My Employer Allowed Me to Take FMLA Leave, But Now They’re Trying to Fire Me!
Getting your leave approved as job-protected leave under the FMLA is just the first step in protecting your rights under the FMLA. Many employees face retaliation for taking FMLA leave, even though they are specifically entitled to that leave under federal law!
Here are some examples of types of actions that courts have found to be illegal retaliation in violation of the FMLA:
- Your employer became visibly irritated because you requested FMLA leave.
- When you returned to work from FMLA leave, your employer effectively demoted you by assigning you to a new position which was not the equivalent of your old position.
- When you returned to work from FMLA leave, your employer decreased your pay or job responsibilities.
- Your employer fired you or refused to renew your contract because you requested or took leave.
- Your employer faulted you for your FMLA absences during a performance review or job assignment.
- Your employer disclosed your protected health information to your colleagues.
If you face any of these types of retaliatory actions because you requested or took leave under the FMLA, you should contact an employment lawyer immediately. Don’t wait until your employer fires you! You may not need to hire an employment lawyer, but you should definitely talk to one so that you know your rights and know what steps you can take on your own to protect yourself.
Peter M. Whelan is a Washington, D.C. employment attorney at Bernabei & Kabat, PLLC. He represents employees who require leave under the FMLA, and employees suffering retaliation for taking FMLA leave. If you have a quick question about your FMLA leave situation that he can answer in ten minutes or less, email him for free, no-obligation feedback.
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