Can an Employee Be Fired for Taking Extended Sick Leave?

Firing an employee can be an unpleasant task for any business owner, especially if that individual is ill. But keeping an employee on the payroll that is incapable of performing their job responsibilities is harmful to a business as a whole - particularly for small businesses, where one person's employment costs make up a large percentage of the companies revenue.

Unlawful dismissal or disability discrimination can quickly become a costly and time consuming predicament for a small business owner. Before firing an employee, employers should make sure their aware of their rights and the rights of the sick employee.

According to the Fair Labor Standards Act (FLSA), employers are not required to provide payment for vacations, sick leave or holidays. However, employers should familiarize themselves with the Family and Medical Leave Act (FMLA), which provides for up to 12 weeks of unpaid leave for certain medical situations for either the employee or a member of the employee's immediate family.

Designed to help employees balance their work and family responsibilities, the FMLA allows employees to take reasonable unpaid leave for certain family and medical reasons. The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year and requires that their group health benefits be maintained during the leave and applies to all public agencies, all public and private elementary and secondary schools, and private businesses with 50 or more employees. **Note: private businesses with less than 50 employees may still be subject to a state version of the FMLA. Check with your state’s department of labor for guidance on the laws that apply to your business.

Under the FMLA, employers are required to provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

* Birth and care of the newborn child of an employee;

* Placement with the employee of a child for adoption or foster care;

* Caring for an immediate family member (spouse, child, or parent) with a serious health condition; or

* Taking medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible under the FMLA if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

All employers subject to the FMLA are required to display a poster explaining employee rights under the law, informing employees how to file a complaint with the Wage and Hour Division of violations of the Act. According to the Department of Labor (DOL), the poster must be displayed prominently where employees and applicants for employment can see it and the text must be large enough to be easily read. Covered employers must display the poster even if no employees are eligible for FMLA leave. The DOL’s FMLA prototype poster is available in English and Spanish.

If the employee is still unable to perform their duties past the 12 weeks of unpaid leave through the FMLA, it is then possible for an employer to legally fire the employee. However, employment laws vary greatly from state to state, so it is important to contact your State Labor Office to learn more about the rules and regulations impacting your business.

Information for Small Employers

It is important to remember that even if your business is not required to comply with the FMLA, you may still have to comply with similar – or even stricter – state employment laws. Contact your state labor office for the current regulations in your area.

Establishing Guidelines for Employees

Employers should also consider creating an employee handbook to clearly communicate expectations of employees, and what employees can expect from employers. An employee handbook is often the most important communication tool between employers and employees. An employee handbook should describe your legal obligations as an employer, and you employee’s rights.

If you have additional questions on employment laws impacting your business contact the Department of Labor’s Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365). Live assistance is available in English and Spanish, Monday through Friday from 8:00 a.m. to 8:00 p.m. EST.