Can an employer rightfully fire you for numerous absences even though you have Dr excuses and drs orders excusing you from work and from going to work?

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Can an employer rightfully fire you for numerous absences even though you have Dr excuses and drs orders excusing you from work and from going to work?

I work for a major retailer and have missed quite a few days from work due to illnesses, mostly due to a having an extremely bad cold or bad case of the flu. I have doctor’s excuses for them. And the doctor has also excused me from going to work the next day so that I can recover and not get anyone else sick. This is something beyond my control. Aren’t they breaking the law by not accepting or excusing my absences with a doctor’s excuse? Isn’t a doctor’s excuse supposed to legally excuse an employee from work? What action, if any, may I take?

Asked on March 16, 2016 under Employment Labor Law, Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

In most jurisdictions, if an employee is occassionally out sick, they have no legal protection. This is true whether or not they present their employer with a doctor's note. The laws relating to employee absences only afford protection if they have a serious medical condition or an illness relating to a disability (see below). The fact is that most employment is "at will"; this means that a company can set the conditions of the workplace much as it sees fit. Accordingly, an employee can be fired for being out sick, for any reason or no reason at all. Therefore, your employer's action was legal unless it violated the terms of a union agreement/employment contract, constituted some form of actionable discrimination or you had sufficient PTO to cover your absences but such time was not honored.
That having been said, under the FMLA (Family Medical Leave Act), if an employer has at least 50 employees within a 75 mile radius of the work site, the employee has worked at least 1 year, and they have worked at least 1,250 hours in the past year, the employee is entitled to up to 12 weeks of leave for a "serious" medical condition. Also, an employee may be affored protection from absences under the ADA (Americans with Disabilities Act) if they were out sick due to a disability (which includes surgery, chemo treatment, etc.).
At this point, you may want to consult directly with an employment law attorney. After hearing the full facts of your case they can best advise you further.


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