It’s happened to all of us. You wake up feeling ill one morning and can’t go into work. You call your manager to let them know, but you get a startling response: if you don’t come in, you’ll be fired.
Is that legal? Should you go into work while sick? Do you need an employment law lawyer?
Unfortunately, the short answer is that your employer is generally not required to provide you with sick leave under North Carolina law. Thus, there is no “right” to be out due to illness and still keep your job. So, is it legal to get fired for being sick under North Carolina law? Generally yes. However, there are certain exceptions to this and other considerations, so read on.
What Does the Law Say About Sick Days in NC?
North Carolina is an at-will employment state. At-will states are very employer-friendly. Your employer can fire you at will, for virtually any reason — or no reason at all.
As an employee, you have some protections against an employer’s whims.
The first protection is a contract. Terms in a valid contract govern that employment relationship. If you have sick leave under the terms of that contract and follow its procedures, that leave is protected, and you can’t be fired for taking a sick day.
The second protection you have is that your employer cannot fire you for exercising a right protected under the law. For example, you cannot be fired in retaliation for filing a workers’ compensation claim or for being out while recovering from your work injury.
Third, you also cannot be fired for a discriminatory reason, such as your skin color or sexual orientation. So, for example, your employer cannot provide sick leave to some people but not others based on a protected category.
You may also be protected under the Family Medical Leave Act (“FMLA”) or the Americans with Disabilities Act (“ADA”), as discussed in more detail below.
Sick Leave Policies
Even if you don’t have a contract, you’re not necessarily out of luck. Though they’re not required, some employers voluntarily choose to provide sick leave as a job benefit. If your employer provides sick leave, they must abide by their published policies. That is like a contract. So can you get fired for calling off if you’re abiding by the published sick policies of your employer? Generally no.
I’m Not Feeling Well but I Don’t Have Any Days: Can I Get Fired From My Job for Being Sick?
Yes. Your employer can make you come into work if you’re sick, and a doctor’s note confirming your illness does not generally compel your employer to give you the day off. Your only potential protection comes under federal law. Note that, as an at-will employee, you are permitted to resign without notice in lieu of going in.
Under federal law, you are entitled to unpaid sick leave in certain situations. An employer may not fire you for exercising this legal right, as North Carolina employers must follow federal law.
You may have the right to sick and medical leave under two different laws: the Family and Medical Leave Act and the Americans With Disabilities Act.
Family and Medical Leave Act (FMLA)
Under FMLA, certain employees are entitled to up to 12 weeks of unpaid leave. The employee must have their job protected while they are on leave and any health insurance has to stay in effect during this time. An employee out sick under FMLA may not be fired.
If your employer has 50 or more workers, you are generally entitled to FMLA leave for the following reasons:
- A serious health condition
- The birth of a child
- Adoption of a child
- Caring for an immediate family member with a serious health condition
Americans With Disabilities Act (ADA)
Under the ADA, employers must make accommodations in their sick leave policies for employees with qualifying disabilities. That means that leave must generally be granted under the ADA if an employee asks for a reasonable accommodation, even if the employee has used all of their leave under FMLA or does not qualify for leave under FMLA (if it is not an undue hardship for the employer). The length of the leave is determined on a case by case basis based on what is reasonable in that particular employee’s circumstances.
As you can see, the situations discussed above don’t include feeling under the weather on a given day. They cover specific external circumstances and events.
Can an Employer Punish You for Being Sick (Besides Firing)?
Yes, with some exceptions. The same rules laid out above for firing also apply to disciplining you for being sick:
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- You can’t be disciplined for being out under FMLA or the ADA
- You can’t be disciplined if it’s for a discriminatory reason
- You can’t be disciplined in a way that contradicts company policies
Otherwise, you are subject to the disciplining rules of your employer if you are out sick without authorization.
Are You Being Targeted for an Impermissible Reason?
Sometimes, the official paperwork will say that your job fired you for being sick, but you’re really being targeted by your employer for some other reason. Let’s say you are not eligible for FMLA and are not given time off for the birth of a child and someone who is also not eligible for FMLA and has a serious illness is also not given that time off.
As long as your employer is being equally unpleasant and unreasonable to all employees, they are acting within their rights under North Carolina law (and federal law as long as they respect FMLA and the ADA). However, if your employer is taking permissible actions but their motivation is retaliation or discrimination against you in some other way, you may be entitled to compensation.
What Damages Can I Collect if I’m Fired for Taking a Sick Day?
If you can show that you were fired for taking a sick day in violation of company policies, federal law, or for a discriminatory or retaliatory reason, you may be able to collect the following damages:
- The wages and benefits you missed out on
- The pain and suffering you experienced
- Reinstatement to your position, including any missed promotions
- Legal fees and costs incurred as you fought for justice
When Should I Hire an Employment Lawyer?
Call a lawyer as soon as you suspect something is wrong. Thanks to our contingency fee arrangement, it doesn’t cost more to hire an attorney early in the process since there are no hourly fees. In fact, we only get an attorney’s fee at all if we’re able to recover compensation for you.2
Your attorney is your advocate. Here are just some of the things your attorney can do for you as you fight for maximum compensation:
- Negotiate and communicate on your behalf
- Keep track of crucial deadlines for you
- Gather evidence and interview any witnesses
- Front all expenses and costs
- Take your case to trial if necessary
Why Hire an Employment Lawyer From the Law Offices of James Scott Farrin?
So that you can reap the benefits of the James Scott Farrin Advantage:
A powerful team: Many of our attorneys are recognized and decorated professionals. Our roster of talent has produced a massive amount of awards and publications, and several of our attorneys have taught seminars and classes for other attorneys.
A successful track record: In 2021, we were able to obtain over $185 million in total compensation for 5,000+ valued clients. Since our start in 1997, we’ve recovered over $1.8 billion in total compensation for more than 65,000 clients. And that doesn’t even include an additional $1.25 billion we recovered from the federal government in a historic civil rights case.1
No Waiting Around: You read that right. Worried about being kept in the dark while your case languishes? We developed our own patented technology to keep things moving on our clients’ cases. Our processes and procedures have earned national recognition and lots of praise from our clients, including our frequent communication. We will keep you informed, updated, and in the loop throughout the life of the case as we fight for what’s right on your behalf.
The clock is ticking on filing your claim, so call 1-866-900-7078. Any day or time, a real human is available to take your call. One of our attorneys can evaluate the specifics of your case for you. Your case evaluation is completely free and there is obligation to hire us afterwards. It’s time to tell them you mean business.
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