QUESTION
If I call out of work with documentation and sick and vacation leave can I get fired
Asked on Dec 02nd, 2016 on Labor and Employment - North Carolina
More details to this question:
I called out of work on 11/30 and 12/1 I returned to work on 12/2/2016 and was told I was fired due to my call outs however I do have sick and vacation leave
1 ANSWER
4 Awards
This is an employment-at-will state which means you can be fired for any reason and there is no liability for the employer unless there is an unlawful motive for the action taken against you. There are generally only two forms of unlawful motives: unlawful discrimination or unlawful retaliation. Discrimination in employment is unlawful if it is due to race, color, sex, national origin, religion, disability or age 40 or older. Retaliation in employment is unlawful if you engaged in one of a handful of "legally protected" activities and were fired for engaging in that activity. If either of these was the motive for the termination, then you may have a claim for unlawful termination.
Terminating an employee who is absent from work is not unlawful regardless of whether you have a doctor's note or sick/vacation leave. The only way this would be a violation of the law is if your sickness was part of a larger issue such as a serious health condition or disability. If it was either, then you might - not certain, but might -- have rights under one of the two following laws:
The Family and Medical Leave Act (FMLA) provides covered employees who work for covered employers with up to 12 weeks of leave for a serious health condition. Not all employers and not all employees are covered by FMLA. At a minimum, the employer must have at least 50 employees and the employee must have worked at least 12 months and more than 1250 hours. In general, things such as colds, the flu, upset stomach, dental problems and the like are not serious health problems. The serious health condition can be the employee's own or of an immediate family member. If an employee on FMLA is able to return to work in 12 weeks or less, then the employer must return the employee to the same or equivalent position. Employees are also allow to take FMLA on a intermittent basis (here and there as needed).FMLA makes it unlawful for a covered employer to interfere with an employee's FMLA rights or leave or retaliate against an employee for exercising FMLA rights.
The Americans With Disabilities Act (ADA) prohibits discrimination against employees or applicants for employment due to a disability. The ADA also requires an employer to provide a reasonable accommodation to an employee or applicant with a disability that will allow the person to perform the essential functions of the job.
Answered on Dec 04th, 2016 at 9:11 AM
I am an experienced attorney focusing on employment law in North Carolina and Tennessee. This post/response is not meant to constitute legal advice.