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ItalianPrincess1217's avatar

Can an employer fire someone who has a doctor's excuse for being absent?

Asked by ItalianPrincess1217 (10240 points ) April 20th, 2011 from iPhone

Since my pregnancy there have been a few occasions I’ve had to call in. In the 8th week of my pregnancy I began to bleed very heavily and the ER put me on a week of bedrest. After that there have been a few days I’ve called in (almost all times I’ve had a note). My employer hasn’t mentioned any intention to fire me obviously but I just want to know my rights if that turns out to be the case. Is it legal to fire an employee for being out sick with a dr note? I’ve never been one to continuously call in. I truly hate having to do it. But there are times when health is more important than going into work to fold clothes.

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26 Answers

tedd's avatar

Not if you’re pregnant no. You would be able to sue the bejebus out of them.

Furthermore your employer would have to be a MEGA dbag to not understand that you may need some random days off for that whole, having a child growing inside you thing.

ItalianPrincess1217's avatar

@tedd Unfortunately none of my bosses have ever had children. They dedicated their lives to work. So they don’t seem to have much compassion for pregnant women.

WestRiverrat's avatar

Thanks to the FMLA act, if you gave him proper notice of your pregnancy, you will own him if he fires you. If you haven’t already go in and ask for the FMLA paperwork.

He may not have to pay you for the missed time, but if you can do the job when you are ready to go back to work he has to give it to you.

edit: This applies if you are in the USA.

SABOTEUR's avatar

I generally hold the opinion that an employer can do whatever they want to do.

Whether or not it’s legal is a different question.

I would suggest you consult your union rep (if you have one) or seek the advice of an attorney.

Pied_Pfeffer's avatar

What country do you live in? That can make a world of difference.

YARNLADY's avatar

California is an at will state and employers can fire for nothing.

rooeytoo's avatar

I have been an employer and an employee. If an employee for any reason, repeatedly called in sick and I or someone else would have to cover for that person, I would be forced to find someone upon whom I could rely. Especially if I knew you were going to be leaving soon anyhow, that is when the child is born. That was always legal, but I have not had an employee in the USA for over 12 years. Has that changed? I would hate to think that the hands of an employer have been so tied that he/she can no longer have the employee who is the most reliable and productive.

I am sorry you are ill but if I were employing you, I could not afford to keep you on under the conditions you describe. Many small businesses operate on a similar basis.

WestRiverrat's avatar

@rooeytoo Here is the relevant law

ItalianPrincess1217's avatar

I’m in NY in the US.

Seaofclouds's avatar

Definitely look into your FMLA rights. Depending on the size of your employer (I think it’s 50 employees or something like that), it may not matter. Also, FMLA rights only apply if you have been working for that employer for a year or more.

With all the FMLA stuff in mind, most states are at will employment states and an employer could fire you without giving a reason. Then, if you were to try to press charges based on defying FMLA, it would be your word against theirs.

Pregnancy aside, even with a doctor’s note, an employer could fire you for being unreliable (or any other reason they wanted to say if they even had to give a reason) if you were out a lot of time.

I hope they don’t fire you because of these past issues. Definitely get the FMLA paperwork from your HR people and get your doctor to start getting it taken care of for you.

roundsquare's avatar

@YARNLADY “At will” usually means they can fire you for anything they want EXCEPT for certain reasons that are disallowed. E.g. even in an at will state they can’t fire on the basis of race, gender, etc…

rooeytoo's avatar

@WestRiverrat – it says “eligible employees of covered employers.” Who is a covered employer? When I had my business, I simply could not have afforded those terms. It would have put me out of business and then the other employees would suffer as well as myself.
There is a question going about the American dream in the 20’s as opposed to now and I would say this is one of the main differences. In the 20’s people did not have the expectation to be paid or employed if you could not perform the requisite tasks.

ItalianPrincess1217's avatar

@Seaofclouds I have been with them for over a year. I was promoted to assistant manager last october. I became pregnant in January and since then 2 other girls have gotten pregnant also. I have on more than one occasion overheard the store manager talking to a fellow manager about “all these stupid girls getting knocked up around here”. There have been rude/suggestive comments made to me directly by the store manager herself. I haven’t fought back. I just keep to myself and try to ignore it. But it’s very clear the managers aren’t very happy that 3 women are pregnant at their store. I know all they see is dollar signs and all that goes through their head is all the time off we will need for the birth, etc. It’s a shame but I understand. Work is more important to some people than family. Not me. I can’t say I would be devastated if I were let go. It’s not a good environment to begin with. But it would make it financially difficult to survive and being pregnant and trying to find work at this point would be difficult.

WestRiverrat's avatar

@rooeytoo they keep changing covered employers. That is one of the reasons many companies are sitting on their earnings instead of hiring new people and growing their businesses, they don’t know what rules will change and leave them holding the dirty end of the stick.

Seaofclouds's avatar

@ItalianPrincess1217 That sounds rough. If you can document the things they say, it might be helpful, though it would still be your word against theirs if anything did happen. If they have a HR person, go talk to that person about getting the FMLA paperwork. If they don’t, you’ll have to ask the manager for it. Take that paperwork to your doctor and get them to get it filled out for you. Some doctors like to wait until closer to the end of pregnancy, but FMLA can also protect you when you need time off for your appointments and since you’ve already had some problems, your doctor might be willing to fill it out sooner for you.

WestRiverrat's avatar

@ItalianPrincess1217 document the inappropriate comments and inform HR or the company’s corporate HR deptartment. That could be harassment.

zenvelo's avatar

Pregnant women are a “protected class” and that has not changed in over 25 years. The FMLA is newer, but just gave broader protection for both mother and father to take leave when the baby is newborn.

The time before pregnancy is covered by disability laws.

Pied_Pfeffer's avatar

Section 195.5 of the (New York) Labor Law states:
Every employer shall notify his employees in writing or by publicly posting the employer’s policy on sick leave, vacation, personal leave, holidays and hours.
If an employer does not have a written policy, the oral policy (or past practice) may be enforced—if the terms of the policy can be confirmed through an investigation. Moreover, violators of ยง 195.5 are subject to civil penalty. Source

Does the company you work for provide this information? If not, then you have a bit of information to build your case should you be fired.

If you run out of sick time pay and additional time off without pay is not approved, then your job could be at risk.

math_nerd's avatar

@Pied_Pfeffer :: It kinda depends on if you are salaried or not. If you are hourly they can keep you on as a employee and only give you a few hours a week. I worked at a place where it was pretty much the policy to never fire someone. You just didn’t give them hours until they went away.

Pied_Pfeffer's avatar

@math_nerd Good point. The company I worked for had the same policy for managers, albeit in a different state. It might have been a benefit.

Reading further on the site listed above, sick time is not required, and NY supports this: Without a contract restricting termination (such as a collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason.

Please peruse this site. There are other links to information that could help you build a case, should it come to that.

dabbler's avatar

our rights as workers to keep our positions are close to nill. @Pied_Pfeffer notes “an employer has the right to discharge an employee at any time for any reason.”
Unfortunately in mos circumstances, they don’t have to fire you they can say your position has disappeared. Per @Seaofclouds good call, do look into the FMLA that could be a bright light of humanity in the machine.

ItalianPrincess1217's avatar

An unfortunate update…I fainted at work today. This has been happening often but today I actually blacked out and fell down. Had an ambulance take me to the ER and all that good stuff. I might have to be taken out of work after all. I may not have to worry about getting fired after all…

zenvelo's avatar

@ItalianPrincess1217 Sorry to hear that, and I hope you and the baby are okay. You may have to go on disability, but they should keep your job for you.

ItalianPrincess1217's avatar

@zenvelo Everything is good with the baby and other than a little bruise on my spine from the fall I’m fine. I still haven’t gotten any answers as to why this keeps happening. It’s frustrating.

SpatzieLover's avatar

@ItalianPrincess1217 Do you usually have low blood pressure (when not pregnant)?

ItalianPrincess1217's avatar

@SpatzieLover It’s always been on the low side but not low enough for them to ever think it was an issue.

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