What employees need to know about at-will employment
Employment at will is the governing principle of employment in the United States today. Although it derived from common law, it has been codified in most states. Importantly, employment at will only pertains to whether or not the employment relationship is a contract. In a subsequent section, I write extensively on employment contracts, so check out that section if you are interested in what an employment contract is. For purposes of this section, it is important that you understand that the vast majority of employees in the United States are employed without a contract and are therefore subject to the at will employment doctrine. However, if you are employed pursuant to a contract, you should review your contract because the at will presumption may not apply to your situation at all. If your employment is subject to a contract , reach out to an attorney immediately upon termination. The foregoing statements are subject to the exception that the at will employment presumption shall not apply to employees working in a protected class or as otherwise set forth in various state and federal statutes. The protected classes are people who belong to the following classes: The employment at will presumption means just that, employers in the United States have the right to make employment decisions with employees including termination absent a contract and absent bringing the employee a protected class. This means that as long as your termination meets the legal requirements set forth in this article and is not in response to a complaint or grievance such as harassment or discrimination, your termination is lawful.
Sick employees have legal protections
When it comes to an employee’s health, most employers have good intentions and follow the law. The law is designed to prevent employers from terminating an employee solely because he or she is sick. A few key statutes designed to protect the jobs of employees who are too sick to work are detailed below.
The Family and Medical Leave Act ("FMLA") provides that eligible employees cannot be terminated because they need time off to care for themselves or a loved one with a serious health condition. Importantly, it is not enough for an employee to simply be sick; the employee must also show that the sickness qualifies as a "serious health condition" as defined by the FMLA. Examples of serious health conditions that qualify include: Unlike sick leave, FMLA is unpaid. Further, there are no restrictions under the FMLA on the employer’s ability to terminate an employee if he or she is unable to return to work at the end of twelve weeks of leave.
The Americans with Disabilities Act ("ADA") prohibits employers from terminating an employee who has a disability. Certain provisions of the ADA also require employers to provide reasonable accommodations to employees with disabilities. Employers cannot terminate, or refuse to accommodate, a disabled employee if there is any possible way in which the employer can continue to employ that person.
The Fair Labor Standards Act ("FLSA") makes it illegal for an employer to retaliate against an employee who uses FMLA-protected leave or who participates in an investigation of illegal use of such leave. This means that an employee cannot be fired for using FMLA leave or being involved in an FMLA investigation, even if the employee is not actually eligible for FMLA leave. Because the FLSA has only been in effect since 2011, and its protections are purported to extend "super" protection to employees, it is likely that the law will become more expansive with time. Until then, however, an employee cannot be terminated for the simple reason that he or she has been sick and removed from work.
Exceptions and grey areas
While many of the laws of interest to us as employment attorneys preempt a manager’s ability to terminate sick employees, not all do. For example, in most states, Unemployment Compensation is only available to former employees who were involuntarily terminated without cause. (Note the "without cause" language, which does not prohibit a manager from terminating an employee for a reason that does not really exist.) Therefore, if a manager terminates a sick employee for "his" or "her" poor attendance, that employee may be eligible to receive Unemployment Compensation because the manager’s actions did not really result in an involuntary termination without cause. Moreover, it is possible that a manager will be protected by the unemployment rule here even if he or she did not knowingly terminate the employee’s employment, but rather simply fail to send the absence termination letter required by his or her company’s policy. Thus, in addition to having an absence termination policy in place and following it to the letter, managers may want to post the termination letter requirements in the time and attendance system so that the manager is reminded of them when a termination is triggered.
Similarly catching management off guard is the ADA, which requires that after being informed that an employee may have a qualifying disability that impacts his or her ability to work, the employer must engage that employee in an interactive dialogue to determine whether there would be a reasonable accommodation for that employee that would allow him or her to work. This is true no matter how tempting the attendance policy or state law would be to provide employers with the unfettered ability to discharge employees who take leave from work. Moreover, engaging our employees in this dialogue often – even if they are not members of a protected class – avoids potentially violating the law of failure to accommodate.
Perhaps less frequently, certain policies exist that can be construed as allowing a manager to discharge sick employees. For instance, if a company has a policy that expressly contemplates discharge after an employee uses a certain number of sick days in a year (i.e., an absence termination policy), termination may be supported by that policy if the employee has breached it, absent evidence of retaliatory intent. Similarly, if an employee has failed to comply with a progressive discipline policy that applies to sickness (i.e., failing to check in to the company on required dates or completing the drug testing process) and the employee has been discharged as a result, absent evidence of retaliatory intent a manager may be able to defend the discharge under an argument that he or she had a legitimate reason to believe that poor attendance was a valid termination offense.
All that said, discharge may be a risky proposition in the absence of a clear and written reason not to be. In short, managers should seek training and legal advice before terminating a sick employee.
What responsibilities or obligations does an employer have with regard to illness?
Employers must understand that their obligations do not end when an employee reports that they are sick. Businesses are required to accommodate employees under their state’s disability accommodation laws. Many businesses and industries will have collective bargaining agreements with their employees that may modify an employer’s rights with respect to leave time and other issues. If, for example, an employee is entitled to extended sick time under their collective bargaining agreement, an employer should not assume that an employee can be terminated simply because they are out of work. An employer should review any collective bargaining agreement that may be in place with regard to the employee before making any unilateral decision to terminate the employee.
Covered employers also must abide by the federal Family Medical Leave Act. Employers must be mindful that an employee seeking to take a leave of absence under the FMLA must notify their employer "sufficiently in advance" of their need to take the leave of absence. The FMLA does not define "sufficiently in advance." However, at least one federal appeals court has held that "unless there are unusual circumstances, an employee should notify his employer ‘at least verbally’ of his need for an FMLA leave within one or two business days of its occurrence , or when the employee becomes aware that the stress leave will exceed three consecutive calendar days." Additional "warning" may be required if an employee was previously denied FMLA leave when the employee did not provide sufficient notice.
Even if an employee does not provide sufficient notice or follow all of the procedures required under the company’s leave of absence policies, an employer generally cannot reject a request for leave if it is made within two business days of the day the employee begins his/her leave. An employee’s failure to comply with the company’s strict leave of absence policies likely will not be found to serve as an excusable basis for denying leave under the FMLA.
Acting in response to the employee’s leave of absence: Although the FMLA entitles an employee to reinstatement after the employee returns from a leave of absence, an employee is not entitled to that reinstatement if their employer had a "legitimate, nondiscriminatory reason" for terminating their employment. For example, terminable reasons must be unrelated to the employee’s exercise of rights under the FMLA or the employee fails to meet currency and eligibility requirements under the FMLA. However, if an employee becomes disabled after working for an employer for six months and the disability leave prevents the employee from continuing to perform the essential functions of their job, then the employer must provide the employee with reasonable accommodation. Regardless of whether a business terminates an employee under FMLA or other state or federal law, however, an employer cannot disclose that the employee is on an authorized leave of absence.
What steps an employee can take if they believe they have been unfairly terminated
Employees who have been the subject of a termination that they suspect may have been motivated by their illness can take a number of steps to seek a remedy. First, the employee should consider filing a complaint with the appropriate public or administrative body. A complaint may be filed with the Equal Employment Opportunity Commission (EEOC) if the employer is subject to federal law and the termination appears to have been motivated by discrimination based on a disability. If the employee feels that the termination was motivated by retaliation for having engaged in protected activity (i.e., taking medical leave), he or she may file a complaint for retaliation with the appropriate labor agency. Second, the employee should consider reviewing the terms of any collective bargaining agreement with his or her labor union. If the employee believes that his or her collective bargaining agreement was violated, he or she may file a grievance through the union. The employee may also want to speak with a union representative about the potential for a collective bargaining agreement grievance based on the termination. Finally, the employee should consider speaking with legal counsel to discuss the possibility of bringing a lawsuit for any viable claims. Many employment lawsuits are based on the violation of federal or state anti-discrimination laws. Prior to filing a lawsuit, the employee may need to file a complaint with the appropriate agency or the court. Legal counsel can provide invaluable assistance in making these choices. Regardless of whether the employee is examining possible administrative remedies or contemplating a lawsuit, it is important that the employee document the termination. This documentation may be important in establishing a prima facie case for any invalidated termination claim. At a minimum, the employee should seek to obtain the following documents: Ultimately, the employee who suspects that he or she was unfairly terminated as a result of illness will need to review the available claims and select the best strategy for pursuing those claims.
Recent case law and legal examples
Recent case studies and legal precedents
While there is no federal law prohibiting termination of a sick employee, there are federal anti-discrimination and retaliation laws that may impact the decision to terminate. For example, the Americans with Disabilities Act ("ADA") prohibits employers from terminating an employee because he is disabled. Under the ADA, a disabled employee is entitled to a reasonable accommodation when necessary for his or her disability to be properly accommodated in the workplace. The Family and Medical Leave Act ("FMLA") allows employees in companies with more than 50 employees to take up to 12 weeks of unpaid leave. Employees who qualify for FMLA leave cannot be terminated during the leave period if the leave request was properly made.
State and local governments may also have laws that provide employees with more protections against termination than federal law. For example, California, New Jersey, and many other states prohibit employers from asking about an employee’s medical history at the application stage. Pennsylvania’s Human Relations Act prohibits discrimination against employees who have a "handicap or disability" that does not interfere with their ability to perform job duties. Some courts have held that using sick time may support a claim for retaliation under the Fair Labor Standards Act ("FLSA"). In the appeals court case, Campbell v . Gambro, Inc., the court held that an employee could bring a claim for retaliation under FLSA when his employer terminated him after he requested sick pay benefits.
In 2012, the U.S. Court of Appeals for the Fifth Circuit held that a worker who never expressly requested leave under the FMLA was nevertheless protected by the Act. Under the FMLA, employees who work for covered employers may take job-protected, unpaid leave when they are unable to work because of a serious health condition. Employees can use this leave when they are ill, as well as when taking care of a family member who has a serious medical condition. One of the protections the FMLA provides employees is a prohibition on retaliatory discharge for absences related to a serious health condition.
In the 2012 case, a former employee of a shipyard, who had previously suffered a back injury, frequently called in to report that he was unable to work. The employee was ultimately fired during one of these calls. The employer argued that the employee never specifically requested leave under the FMLA; however, the appellate court held that the employee’s telephone calls were sufficient. This case stands for the proposition that when an employee has a disability, the employer should be obligated to ask follow-up questions to determine if the employee is making a request for a reasonable accommodation under the ADA or FMLA.