Can I be fired due to illness/being out on sick leave?

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Can I be fired due to illness/being out on sick leave?

I think I was fired due to my being on sick leave. The Tuesday prior to my being out on sick leave I was told I was doing s great job. The day I returned from sick leave I was placed on a performance improvement plan and my job was posted. Now that I have applied for unemployment, my former employer is claiming I was fired for misconduct. Do I need a lawyer? Do I have any grounds for legal action? I would love my job back, but at this point all I really want is to be rid of my racist manager and to collect unemployment until I can find a new job.

Asked on June 23, 2012 under Employment Labor Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you did not have an employment contract, you could generally be fired at any time, for any reason or even no reason (i.e.  your employer simply wanted to fire you), so you may not be able to recover you job. However, while the odds are against you if you do not have a  contract, since you would be an "employee at will," it's not impossible that you may have a claim for wrongful termination, if you could show that you were fired for using sick days which you had earned or accrued as part of your employment, and/or for taking sick leave after your employer had promised you that you could use it. It may be worthwhile consulting with an employment law attorney, to discuss the situation in more detail. There is a chance you may be entitled to either reinstatement or compensation.

You also refer to your manager as "racist." Racial discrimiantion in the workplace is illegal; if you can show that your termination was due to racism, then you may also have a legal claim on that ground. Again, it would be worthwhile to consult with an employment law attorney.

Also, if you are fired but not for cause--e.g. not for misconduct--you would be eligible for unemployment. You should apply for it; if your employer tries to deny by claiming you were fired for misconduct, you can present you own evidence and testimony to refute that. You attorney can help you with this, too.


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