Getting Fired While Out Sick – It Can Happen

Believe it or not, it is possible to be terminated while out on medical leave. However, the employee cannot be terminated because of medical leave or because of the underlying disability.

Employment, in the absence of an employment contract, is known as at will. (Note: in this context, an employment contract includes a collective bargaining or union agreement, too.) That means that an employee may be terminated for any reason that is not illegal, at any time, without notice. Very few reasons for termination are specifically made illegal, the main ones are:

  • No termination because of discrimination against a protected group. Some examples are age discrimination (over 40), race, religion, sex, or most significantly for this purpose, disability. Employers are required to make “reasonable accommodations"to allow disabled employs to work, though employers are not required to take unreasonable steps, such as inventing a job for someone who cannot do any positions the company needs.
  • No termination for using a legally protected right or filing a legally protected claim, such as by taking medical leave under the federal Family and Medical Leave Act (FMLA) or under similar state laws.

However, barring the above, employees may be terminated at will. And the protection conferred by the above is limited. For example, a woman may not be fired (or otherwise discriminated against at work) because she is a woman. She could be fired if her job performance is bad, for excessive absenteeism, for violating work rules or policies, etc. Similarly, someone who is disabled cannot be fired simply because he or she is disabled, but if there is a general restructuring eliminating that person’s position, the fact that he or she is disabled does not make him or her immune from being laid off.

The reasoning is the same for someone on medical leave. While someone cannot be fired because they took protected medical leave, taking leave would not stop them from being fired because of some other issue, including a restructuring or reorganization, for performance-related issues unrelated to the leave (or the medical condition giving rise to it), for not following work rules, for poor performance, etc.

It may be the case that, as a practical matter, the termination will take effect upon the end of the leave and the employee returning to work. That would depend on the exact nature of the leave, the reason for termination, the employer’s own policies on how to handle cases like this, etc. However, even if that’s the case, the decision to fire, and even often the notice of termination, could still be made during the medical leave. The leave cannot be the cause of termination, but it doesn’t necessarily stop an otherwise-valid termination.

One exception to the rule that employees can’t be fired for taking leave: if the employee did not comply with the law and/or company policy about taking leave, such as not providing notice of leave (and instead simply not showing up to work), that behavior itself may provide a good basis for termination.