Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, July 6, 2012

Can You Be Fired If You Are Sick After Your Vacation? Probably

I returned from a lovely three week trip to Italy with the souvenir that keeps on giving: pneumonia. It started out with sniffles. By Monday afternoon, I had a fever. Tuesday, I was coughing. On the Fourth, instead of enjoying barbecue and fireworks, I ended up at the urgent care. He counted back the days of incubation and thinks I got it somewhere on beautiful Lake Maggiore: maybe the public ferry or at a marketplace. Exposure to illness can easily happen when you travel: the airport, bus, train, or any public place can be full of contagion.

I asked the doctor if I could go to work Thursday and he said absolutely not. I was contagious and had to stay home. I couldn't go back until Monday. He said he'd write me a note.

Fortunately, I didn't need a note. I'm my own boss. And I'm not heartless enough to go in and contaminate my staff. But I wondered: what would happen to my clients if they came back from their vacations sick?

The answer is sad. They're probably fired or disciplined. I have seen this time and again. Many bosses are royally ticked if you return from your fun in the sun only to say you're too sick to work. Contagion be darned. They don't want to hear excuses. They want you in the office.

There are a few laws that may protect you if you're sick right after vacation. Here are some:

Family and Medical Leave Act: If your company has at least 50 employees within 75 miles of your office, and you've worked at least a year, you may be covered by FMLA. This means if you miss work for a serious medical condition requiring medical treatment, you must be restored to the same or an equivalent position when you return. It's a bit tricky, but you should notify HR as soon as you can if you think you qualify for FMLA. There are forms for your doctor to fill out. While the company is supposed to tell you if you report an illness that should be covered, many don't, either because they don't understand the law or don't care.

Americans With Disabilities Act: My pneumonia is probably not a covered disability under the ADA. But if you have a chronic respiratory condition or some other medical condition that the pneumonia exacerbates, then you might be protected under ADA.

Health Laws: If you work in an industry that has laws prohibiting you from working when you have a communicable illness (such as health care or food service) then you may be protected as a whistleblower if you refuse to violate the law and come in to work.

OSHA: If you are contagious, you might be protected under the OSH Act, which requires that employers provide a safe workplace. And if your company makes someone contagious come in, you may be entitled to refuse to work with them (but beware: the ability to refuse to work is limited, so contact OSHA before you take drastic measures).

My recommendation? Unless you're flat on your back or in the hospital after your vacation, go in sick. If you're contagious with something dangerous, such as swine flu, plague, or smallpox (as opposed to the common cold or flu), get a doctor's note and submit it to your supervisor and HR. If you are still ordered to come to work, go in, even if you have to go in on a stretcher. Don't give them an excuse to say you were insubordinate. (A well-placed cough or two in the jerky boss's direction might be called for in that case).

Even if your boss tells you to stay home, that doesn't mean they can't hold it against you later. Your review might say you had excessive absences or question your loyalty. If you aren't legally protected, there isn't much you can do except to try not to miss any more work for awhile (and don't put in for another vacation for a long time).


  1. A good explanation will probably save you.
    maine it services

  2. Where is there a law that says you can't work sick if you're in food service? I worked in it for years, and we were always expected to come in and work. The only excuse was explosive diarrhea or death.

    Gross, I know.

  3. Hi Mabel. Each state has different laws. Here's an explanation of Florida's law: http://www.myfloridalicense.com/dbpr/HR/forms/documents/5030_101.pdf

  4. The company I work for has a policy that employees can only cancel a shift 24 hours prior to the scheduled shift regardless of the matter. I called in sick a half hour before the beginning of the shift and was asked to write a statement as to why I called in sick and a plan of correction. Is that legal?


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.