Fired Due to Illness

You may be reluctant to take time off from work when you are sick for fear that you will lose your job because of it. If so, you are not alone in harboring such fears. Unfortunately, your fears are justified. In fact, many California workers are fired due to illness. In some circumstances, firing you due to an illness is illegal and your employer may be liable for damages for wrongfully terminating you. In other circumstances, firing you due to an illness is legal. This article is intended to help you know your rights and identify whether your rights may have been violated. If you believe your rights have been violated, contact an employment attorney such as the experienced employment attorneys at Kokozian Law Firm, APC.

In California, employment is generally considered “at-will.” Thus, your employment is probably “at-will” unless:

(1) you have signed a contract with your employer specifying that you can only be fired for certain reasons, or

(2) you belong to a union that has a union contract with your employer specifying that you, as a union member, can only be fired for certain reasons.

“At-will” employment means that you are free under the law to quit at any time without explanation. “At-will” employment also means that your employer can fire you at any time without explanation.

One consequence of at-will employment is that your boss may be free to fire you just because you were sick and took a day off. Your boss does not have to tell you that you are being fired for calling out from work due to illness. Your boss does not have to give any reason for firing you.

Fortunately, there are some important exceptions to the rule that at-will employees can be fired for any reason, including illness.

Under California’s preeminent antidiscrimination law, the Fair Employment and Housing Act (FEHA), California Government Code §§ 12900 – 12996, you may be protected from being fired due to an illness related to your disability. FEHA is intended to enable people with disabilities to have opportunities for employment. An illness can be a disability. A “disability” under FEHA includes the categories listed below:

• Physical Disability. The term “Physical Disability” includes anatomical losses, conditions, physiological diseases, cosmetic disfigurements, and disorders that:
• affect one or more bodily systems (such as the respiratory system), and
• restrict a major life activity (such as working).
• Actual, Potentially Disabling, and Perceived Disabilities: The term “physical disability” is broadly construed under FEHA to protect employees from discrimination due to actual or perceived physical impairments that are disabling, potentially disabling, or are perceived by the employer as being disabling or potentially disabling.
• Mental Disability. The term “Mental Disability” includes psychological or mental conditions and disorders that:
• restrict a major life activity, or
• mandates special education or related services.
• Exclusions. Expressly excluded from the definition of “mental disability” are substance abuse disorders arising out of the illegal use of controlled substances. Also excluded from the definition of “mental disability” are sexual behavior disorders, compulsive gambling, kleptomania, and pyromania. Additionally, if you are unable to work for a particular supervisor due to anxiety and stress caused by the supervisor's standard oversight of your job performance, this does not constitute a mental disability under FEHA.
• Medical Condition. The term “Medical Condition” includes health impairments related to a history, record, or diagnosis of cancer, and genetic characteristics that have been associated with an increased risk of developing a certain disease or disorder. Medical conditions can overlap with physical disabilities and mental disabilities.

Some California cities provide protections beyond those available under FEHA. For example, while obesity in of itself is not a disability under FEHA and obese individuals are not protected against discrimination in the workplace in California on the basis of obesity alone, the City of San Francisco has expressly prohibited discrimination on the basis of weight.

• Small Employers: It may be legal to fire you due to an illness if your employer is a private employer with less than five employees. FEHA only applies to private employers with five or more employees, and public sector employers such as the State of California, its political and civil subdivisions, and cities. Thus, there is no right to be free of discrimination due to disability if a small private employer employs you. Note, however, that the “five or more employees” requirement is satisfied even if some of the employees working for your employer are parttime or work outside of California.
• Religious Organization Employers: It may be legal to fire you due to an illness if your employer is a tax-exempt division of a religious association or nonprofit corporation.
• Mild Illnesses with Little or No Residual Effects: It may be legal to fire you due to an illness unrelated to a disability. An illness may be unrelated to a disability if the condition is mild, has little or no residual effects, and does not limit a major life activity. Examples of such conditions may include the common cold, common influenza, sprains, and non-migraine headaches. In contrast, persons with illnesses are protected even if the effects of the condition are disabling only in the short term.
• Not a “Qualified Individual”: It may be legal to fire you if you are not a “qualified individual.” What this means is that it may be legal to fire you if you are unable to perform the essential duties of your job (the performance of which are the reason the job position exists) even with reasonable accommodations (modifications to your job duties designed to enable you to continue working despite your disability-related limitations). It may also be legal to fire you if you cannot perform the essential duties of your job in a manner that would not endanger your health or safety or the health or safety of coworkers even with reasonable accommodations. The threat to health or safety has to be tangible. Unsurprisingly, Courts have ruled that an employer's belief, unsupported by factual or medical evidence, that an employee's condition threatens the health or safety of other employees is not a defense to disability discrimination.
• Independent Contractors: It may be legal to fire you due to an illness if you are an independent contractor as opposed to an employee. However, independent contractors are protected under FEHA from being harassed due to a disability.
• Volunteers: It may be legal to fire you due to an illness if you are a volunteer as opposed to an employee.
• Family Employment: It may be legal to fire you due to an illness if your employer is a family member.

• Notice: Give your employer as much notice as possible that you are going to be off work due to illness.
• Follow Company Policy: Know your company’s policies and follow them, if possible. Know whether company policy allows you to call out sick by email, text, or a phone call, and how much notice is required.

If your former employer has fired you from your job due to you having an illness, or because you suffered an injury, or if your employer or former employer has otherwise violated your rights under California law, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact Us via our online form.