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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 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.


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