Is it legal to discipline or fire me for missing work due to my illness and my child’s injury?

UPDATED: Oct 2, 2022

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Is it legal to discipline or fire me for missing work due to my illness and my child’s injury?

At the end of last month, I missed 3 1/2 days of work due to an as yet undiagnosed illness/injury that caused me immense pain in my back. The next week my son was ill which led to my missing 2 1/2 days taking him to the doctor and having some testing done. Last week, I missed 3 days after my son hurt his knee and was in

excruciating pain. He is 11, and I am a single mother, with no one to help me. Also is at issue is that at times I am late. I have 3 chronic illnesses – psoriasis, psoriatic arthritis and mastocytosis, as well as 2 herniated disks in my back. I am in constant pain but I go to work and struggle through the day, however, sometimes I am late. There are days that it takes me longer to get going in the morning, my boss knows this, yet I am being disciplined for being late and missing too much work. Is any of this legal?

Asked on October 21, 2019 under Employment Labor Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

It is legal. Even when it is for your own or a child's illness, you can only miss work legally if one or both of the following apply:
1) You have and use paid time off (PTO) you earned, such as sick days; 
2) Your company is covered by the Family and Medical Leave Act (FMLA), which means it has at least 50 employees located within a 75 mile radius; you are eligible for FMLA leave, which means you worked there at least one year and worked at least 1,250 hours in the past 12 months; your (or child's) condition qualifies for using FMLA (you can find information about when you can and can't use FMLA on the U.S. Dept. of Labor webpage); and you ask for and use FMLA leave.
That's it: unless you use PTO or FMLA, there is no right to miss work (or be late to it) and you can be terminated or otherwise disciplined for absenteeism.

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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