Can an employee who is off work with a doctor’s note be terminated?

We have a small business with less than 10 employees. We have an employee who has been off for 3.5 week with a doctor’s note. She went to a specialist last week and they faxed over another note for her to be off an additional 4 weeks until she is evaluated again at that time. She has not been in touch, just had the specialist fax over the note. I need to replace her position ASAP and want to make sure she is terminated lawfully. What is the best way to do so to cover ourselves? Do I tell her she is going to be replaced and we are restructuring office? Do I tell her she is terminated to to excessive absence? Do I wait and see if she try to come back and tell her we dont have any hours for her?

If we can do this, what is the best way. She is not going to take this well

and thinks she is totally protected with her doctors note.

Please Help

Asked on December 14, 2017 under Employment Labor Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You may simply warn her that--assuming that none of 1) - 3) below applies--if she does not return to work immediately, you will terminate her: and if she does not return, then fire her for absenteeism. Send the warming in writing, sent several ways (e.g. email; also priority or express mail or fed ex with tracking) you can prove delivery.
There is NO right to miss work for illness except as per 1) - 3); and a doctr's note does not protect an employee, since the doctor has not authority over your workplace.
The only times an employee may miss work, even for medical reasons, are:
1) They have and use paid time off they earned to cover the absence (e.g. sick or vacation days)--they may only miss as many days as they have PTO to use.
2) The employer has at least 50 employees withing a 75-mile radius, and so is covered by FMLA leave; the employee is eligible for FMLA leave (e.g worked there at least a year; worked 1,250 hours or more in the past 12 months; is using the leave for their own or an immediate family member's medical care or maternity/paternity leave); and the employee chooses to use FMLA leave, in which case they can get up to 12 weeks of unpaid leave.
3) The employer has some written medical leave policy, with which the employee has fully complied.
Otherwise, even if sick, ill, injured, etc., they can't miss work, and the law does not make you retain employees who cannot or will not come to work. So give her the written warning; see if she complies; and if not, terminate her.  She may try to bring legal action, but unless 1) - 3) applies, you should prevail. (Unfortunately, bad lawsuits or legal claims are brought all the time; you cannot stop someone who feels aggrieved from filing an action.)


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