Is it legal for an employer to fire an employee for rushing to the ER for a known allergy?

UPDATED: Aug 24, 2011

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Is it legal for an employer to fire an employee for rushing to the ER for a known allergy?

My aunt worked in a medical billing office. One day, a co-worker brought in strawberries. My aunt had a severe allergic reaction just from being near them and had to be rushed to the ER for treatment. The office was informed on what had happened. Today, the same woman brings in strawberry preserves and opens them right where my aunt was sitting, sending her into an attack once again. This forced her to be sent back to the ER. The office fired her for this.

Asked on August 24, 2011 Tennessee


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

1) Unless  your aunt used FMLA leave (if she and the employer were both covered) or otherwise took time off for the ER pursuant to the employer's policy on taking time for health reasons (e.g. properly used a sick day), then she probably should have been fired; otherwise, though, employers don't need to allow employees to leave for medical care--as heartless as it sounds, they may fire those that leave their station or the premises.

2) However, even though it may be that she could be fired, if the co-worker knew or had reason to know of the severity of your aunt's allergy--which she may well have been, given the previous attack--then the coworker and the employer may both be liable for damages or compensation--including for lost wages due to being fired. This might result in being able to settle so as to let your aunt keep her job, for example.

Your aunt should discuss this situation with an employment attorney, to see both if she could have been fired in the first place, and also if she has a cause of action for the negligence (or even intentional malicious act) of exposing her to the strawberries.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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