doctorpadOne of the biggest dilemmas that employees can face is what to do if they fall ill or become sick-go to work feeling terrible, or calling to ask for the day off, and risk potentially being fired, demoted, or having other employment action taken against them for not showing up.

Everybody gets sick.  Illnesses and medical emergencies are not confined to non-working hours. Importantly, sometimes it is a child or aging parent who gets sick and the employee has to take the day off to care for the family member.

If you have been fired for calling in sick, whether you’ve been fired illegally or not is not always a black-and-white issue. It depends on several factors, including whether your illness was part and parcel of a larger medical condition, and the extent to which the companies late/tardy policy conflicts with the protections afforded to individuals with medical conditions under California law. Also, starting July 1, 2015, California law has started to provide a new protection for individuals needing to take sick leave, requiring that all employers provide at least three days of paid sick leave, regardless of whether the employee is full-time, part-time, an independent contractor, seasonal, temporary, or otherwise. If you have been fired for calling in sick, you may be the victim of unlawful and wrongful termination. Read on, and determine whether you need to seek legal help for your unique circumstances.

California’s New Paid Sick Leave Law

Under the Healthy Workplaces/Healthy Families Act of 2014, starting July 1, 2015, any employee who works in California for 30 or more days within a year from the beginning of employment is entitled to paid sick leave.  You must work for the same employer to qualify.  The HWHFA authorizes an employer to limit an employee’s use of paid sick days to 24 hours, resulting in 3 days of leave each year based on an average 8-hour workday. You accrue one hour of paid sick leave for every 30 hours you work. That means you should earn one paid sick day off after working at least 30 hours per week for three months, and three paid sick leave days after nine months.  Sick leave is paid at your regular wage rate. Your employer does not have the right to ask the reason you are using paid sick leave. You can use the sick leave to care for yourself, or a family member.

If you have been let go, or had your pay cut, or been demoted or face other negative employment action simply for taking sick leave, give us a call and we will be glad to speak to you about whether your employer’s action was wrongful.

Sick Leave Eligibility

Under the HWHFA, you must work for your employer at least 90 days before beginning to accrue sick leave.  If you are eligible, your employer must grant you the sick leave upon your verbal or written request.

Exempted Employees

If you work in certain industries, the HWHFA does not apply. These include:

  • Employees covered by a collective bargaining agreement providing for paid sick days
  • In-home supportive services providers
  • Construction industry employees covered by a valid collective bargaining agreement
  • Employees of an air carrier serving as flight deck or cabin crew members and subject to the provisions of Title II of the federal Railway Labor Act.

Sick Leave Uses

California’s new paid sick leave law allows sick leave to be taken beyond an individual employee’s illness or injury. You may take sick leave for the purposes of caring for your own or a family member’s health condition.  Other permitted uses include preventive care , such as  flu shots, mammograms or annual physicals. If you or a family member have been the victim of certain crimes, you can take paid sick leave. These crimes include:

  • Domestic violence
  • Sexual assault
  • Stalking

Termination As Retaliation for Medical Condition or Medical Disability

if you have been let go for taking sick leave, or calling in sick, it is possible that your employer is retaliating against you on the basis of your medical condition. . The California Fair Employment and Housing Act makes it unlawful for any employer with over 5 employees to discriminate against an employee based on an unlawful reason, such as medical condition.  FEHA requires that employers and employees engage in a good faith “interactive process” to determine the appropriate reasonable accommodations for employees with medical conditions.  Employers may not request diagnosis information to determine whether an employee has a legitimate medical condition, because this violates privacy interests.  Individuals who succeed in bringing medical condition discrimination claims are entitled to back-pay, compensatory damages, and attorneys’ fees.

Disabilities and medical conditions can include physical medical conditions, but also emotional conditions, such as depression, anxiety, OCD, PTSD, panic attacks, and similar conditions. Medical conditions do not, however, include sexual behavior disorders, gambling addictions, kleptomania, pyromania, unlawful drug abuse, or similar conditions.

In addition, the Americans with Disabilities Act (ADA) prohibits discrimination against those who are mentally or physically disabled, or are perceived to have a record of such disability. The law requires that such workers be given a reasonable accommodation if doing so would permit them to perform the essential functions of their jobs. Discrimination is unlawful under the ADA against qualified individuals with a disability who can perform the essential job functions with or without reasonable accommodation.

Getting Legal Help

AXIS Legal Counsel is an employment law firm representing clients  in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is sexual harassment, other kinds of harassment, discrimination, race discrimination, pregnancy discrimination, medical/disability discrimination, racial harassment, retaliation, hostile work environment, wage/hour, workplace bullying, or other claims, AXIS Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service.  AXIS’s managing attorney, Rabeh M. A. Soofi, is recognized as one of the “Top Women Lawyers in Southern California” by SuperLawyers Rising Stars, and is a Los Angeles Employment Attorney with experience representing numerous employees with a wide variety of employment claims.

For information on retaining AXIS Legal Counsel for any employment matter, contact or call (213) 403-0130 for a confidential consultation, or visit our Employee’ Rights Practice Area, or Individual Rights Portal. AXIS is a Los Angeles, California employment law firm serving employees all over Los Angeles and California.

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