Martoccio Law Group

A common issue in the employment law world is an employer terminating an employee that has missed time from work due to medical reasons.  Can an employee be fired for calling out sick? Like most legal issues the answer is…it depends.

If you are terminated due to calling out because of a common cold, then it is unlikely that you will be able to bring a claim. However, if you are terminated after calling out of work due to a diagnosed medical condition, whether it be physical or mental, there is a chance that you may have a claim.  Key factors in assessing a potential claim related to a medical absence are whether the employer was put on notice of the medical condition leading to the absence(s), the duration of the absence(s), and if the employee cooperated with the employer regarding requests for medical documentation to support the absence(s).

If you are absent for medical reasons, you should always follow your company’s policy for calling out of work. In addition, you should make the employer aware, in writing (text, email, etc.), of the specific medical condition that you are missing work because of and your potential return to work date, if possible.

An employer is required to maintain a work environment free from sexual harassment.  However, simply being subject to sexual harassment from colleagues does not necessarily mean that an employer has acted unlawfully.  If you are sexually harassed in the workplace, it is imperative that you put the employer on notice of the harassment by making a complaint (preferably via email) to Human Resources or management.  Once an employer is on notice of the harassment, the employer must take prompt remedial action to address it. An employer also must refrain from retaliating against an employee that raises concerns about sexual harassment.  

Another issue related to sexual harassment involves “quid pro quo” harassment.  The two most common examples of quid pro quo harassment are the following scenarios: 1) A supervisor either offers to promote or provide preferential treatment to a subordinate employee in exchange for engaging in sexual behavior; 2) A supervisor threatens to terminate or retaliate against a subordinate employee if they do not engage in sexual behavior. If an employee turns down a supervisor sexual advances of quid pro quo invitation, it is unlawful for a supervisor to retaliate against them. However, as mentioned above, it is important to make a complaint to Human Resources or management if you experience any form of sexual harassment in the workplace.

A big misconception is that an employee is protected from retaliation once any type of complaint is made to management or Human Resources. While that is not exactly the case, an employee cannot retaliate against an employee that engages in “protected activity.” In short, protected activity means making a complaint about discrimination based on the one of the above protected categories or about sexual harassment.  If an employee engages in protected activity, an employee cannot retaliate against that employee because of their complaint.  Examples of retaliation include: termination, discipline, hostile treatment, etc. 

An employer cannot discriminate against an employee for being the member of a protected class. The classes protected from discrimination include race, age, sex, disability, religion, national origin, sexual orientation, gender identity, and genetic information. Discrimination in the workplace can be evident through termination, discipline, discriminatory comments, differential treatment between members of different protected classes, etc. 

While having a medical condition or being pregnant does not make an employee immune to termination, an employer cannot fire an employee because they have a given medical condition or are pregnant.  Most employers are smart enough to refrain from explicitly stating that medical reasons or pregnancy is the reason for an employee’s termination.  Instead, employers often hide behind an illegitimate reason to terminate an employee, which is known in the employment law world as “pretext.”

If an employee is terminated just before, during or shortly after a medical leave or maternity leave, chances are that the employee’s potential to succeed with a legal claim will come down to whether the employer had a legitimate business reason to terminate the employee.  The employee must focus on illustrating why the proffered reason for termination is a pretext.  Some common examples of pretext include but are not limited to the following:

• An employee has had an excellent history of performance prior to their pregnancy, only for an employer to make bogus allegations that the employee is a poor performer once the employee is pregnant and/or goes on maternity leave.
• An employer foregoes its typical progressive discipline or performance management process in a haste to terminate an employee that is pregnant or on maternity leave.
• The employer claims that the employee is “laid off” or that their position is eliminated, despite there being no legitimate reason behind the layoff/position elimination. We often see situations where an employee that is pregnant and/or on maternity leave is the only individual “laid off” on their team or within the entire company.

The above scenarios could be used as evidence of pretext and help an employee succeed with a potential legal claim.

While not all terminations that feel unjust or unfair are unlawful, if your termination is discriminatory or retaliatory, it may be unlawful.  Examples of unlawful terminations include but are not limited to the following: 

• Discrimination based on race, age, sex, religion, national origin, sexual orientation, etc.
• Retaliation for requesting or taking time off for medical reasons or requesting a medical accommodation
• Retaliation for requesting or taking a maternity or paternity leave
• Retaliation for opposing discrimination or sexual harassment

Martoccio Law Group handles a wide range of employment claims including but not limited to the following claims: wrongful termination, the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), sexual harassment in the workplace, and discrimination based on race, pregnancy, sex, age, religion, sexual orientation, etc. We also represent current employees that are dealing with issues in the workplace, and you do not need to be terminated in order to bring a claim.