Is it legal to fire someone while in the hospital?

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Is it legal to fire someone while in the hospital?

Wife was in hospital for almost
three months. Had been with Co.
Ten years. Was told job was
secure, but was ultimately let go.

Asked on August 7, 2017 under Employment Labor Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Was she elible for FMLA leave and used it, and had not yet run out of it? (You can get up to 12 weeks from FMLA, but only if your employer has at least 50 employees within a 75 mile radius, you worked there at least a year, and you worked at least 1,250 hours in the past 12 months.) Or if not, did she have--and use--sufficient paid time off (e.g. sick or vacation days) which she had earned to cover the absence? If the answer to either of these questions was "yes," it was most likely illegal to fire her: you cannot fire someone for using FMLA leave or vacation/sick days they had earned. (You can be fired for a good, provable, unrelated reason while on FMLA or PTO, such as it was discovered you had stolen from your employer or falsified your resume.)
But if the answer to both questions is "no," she could be fired for being out if the employer decided it did not want to hold her job for her. Except when using FMLA or PTO, your employer may terminate you for missing work, even for hospitalization, and can one day say it will hold your job, then the next day change its mind.


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