Can my boss fire me for being out with my sick kids when I brought a doctors note like she asked?

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Can my boss fire me for being out with my sick kids when I brought a doctors note like she asked?

My boss forced me to come into work with a 102.6 fever and I worked in the infants room. When I left she told me I had to have a doctors note if I was going to miss work. I went to the doctor and was diagnosed with a sinus infection, ear infection, and pneumonia and I got a note. When I returned to work the following week my children became ill. My boss insisted I split the time off with my husband and that I have a doctors note for any time off. My husband was off with the kids for 2 days and I was off with them for 2 days. I also provided my boss with a note from the doctor for the absence.

Asked on November 16, 2011 under Employment Labor Law, Missouri

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If your employer is large enough (at least 50 employees within a 75 mile radius) and you have worked there long enough (basically, one year on a full-time basis) to be covered under the Family and Medical Leave Act (FMLA), you have an absolute right to take up to 12 weeks of leave per year for your, or your immediate family's, medical or health needs. You have to state you are taking time off for medical reasons, pursuant to FMLA, and the leave is unpaid, but you have the right to use it and you cannot be fired for using it.

However, unless you are using FMLA leave (assuming you and your employer both qualify for it) or are using sick days which you have accrued as part of your compensation, the employer probably has the right to fire you for having taken time off from work to care for sick children. The common law and federal law do not provide any right  to take time off, other than FMLA leave, to care for family members.

There are, however, two things which may help you:

1) You do not specificy which state you are from. Certain states have their own laws about medical leave. It is possible that even if you are not covered by FMLA, that you may be covered by a state law. You need to check your state's law on the subject.

2) IF in reliance on your supervisor's promise that if your husband took some of the time off and you provided a doctor's note, that then your employment would be safe, your husband did in fact take time off from work, that may be enough to make the promise that you would be ok if you did this binding. Usually, promises are not enforceabble; however, they may become enforceable if the party to whom the promise was made, while reasonably relying on the promise, did something to its detriment which the party making the promise knew or should have known it would do. Here, your boss should have known that if she effectively promised that you'd be ok if you split the time off with your husband (and got a doctor's note), that your husband would take time off from his own work, which is something to your detriment (since as a family, you gave up work days). This might be enough to make the boss's promise binding, and you might discuss this--as well your state's medical leave law (if any) and the applicability of FMLA to your situation--with an employment lawyer. Good luck.


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