Can You Be Fired for Being Sick? FMLA, ADA and State Law
Being sick is not a protected reason by itself. When the FMLA, the ADA or a state sick-leave law makes a firing illegal, and the deadlines to file.
Federal leave and disability laws, plus many state sick-leave laws, can make a firing over illness illegal, depending on your employer's size and your illness.
Sometimes. You can be fired for being sick in most U.S. jobs, because being sick is not a protected reason on its own. Protection comes from specific laws: the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), state and local sick-leave laws, and anti-retaliation laws.
The FMLA requires a covered employer (a private employer with 50 or more employees, or a public agency or school of any size) and a worker who meets its eligibility tests. The ADA requires an employer with 15 or more employees and an illness that counts as a disability.
Can You Be Fired for Being Sick?
You can be fired for being sick unless a specific law protects you, because most U.S. employment is at-will. At-will means an employer may end the job at any time for any reason that is not illegal. Illness alone is not one of those illegal reasons.
Three kinds of law change that answer:
- The FMLA. Eligible employees can take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for their own serious health condition. Firing someone for using that leave is unlawful.
- The ADA. Employers with 15 or more employees cannot fire a qualified employee because of a disability. A chronic illness such as diabetes, cancer, or epilepsy can be a disability.
- State and local sick-leave laws. No federal law requires private employers to provide paid sick leave. Many states and cities do require it, and many of those laws also bar retaliation for using it.
A cold or the flu is generally not a disability under the ADA. If none of these laws applies to your job, an employer can generally fire you for absences under a reasonable attendance policy it applies the same way to everyone. When a firing does break one of these laws, the wrongful termination guide explains how that kind of claim works, and the your rights hub lists related workplace protections.
When the FMLA Protects You
The FMLA protects you from being fired for medical leave when two things are true: your employer is covered, and you are eligible. Both tests come from the U.S. Department of Labor, and the full rules are on the Department of Labor's FMLA page.
| Requirement | What it takes |
|---|---|
| Covered private employer | 50 or more employees for 20 or more workweeks in the current or prior calendar year |
| Covered public employer | Public agencies and schools of any size |
| Time with the employer | 12 months |
| Hours worked | 1,250 hours in the previous 12 months |
| Worksite size | At least 50 employees within 75 miles |
| Reason for leave | Your own serious health condition, a family member's, a birth, or an adoption |
| Leave length | Up to 12 workweeks, unpaid, in a 12-month period |
The hours test is easier to picture as a weekly number. 1,250 hours divided by 52 weeks comes to about 24 hours a week. If you have worked for the employer for 11 months, you have not met the 12-month test yet.
Give 30 days' notice when you can see the need for leave coming. When you cannot, give notice as soon as practicable. Your employer may ask for medical certification of the serious health condition.
Under 29 U.S.C. 2615, an employer may not interfere with your FMLA rights or fire or discriminate against you for using them. The Department of Labor Wage and Hour Division takes FMLA complaints. Our Family and Medical Leave Act guide walks through the leave itself in more detail.
When the ADA Protects You
The ADA protects you when your employer has 15 or more employees and your illness counts as a disability. It bars firing a qualified employee because of a disability. It also requires the employer to provide a reasonable accommodation unless that accommodation causes undue hardship.
A chronic illness such as diabetes, cancer, or epilepsy can be a disability. A short-term illness such as a cold or the flu generally is not.
The Equal Employment Opportunity Commission (EEOC) enforces the ADA. You must file a charge within 180 days of the discriminatory act. That limit extends to 300 days where a state or local agency enforces a law against the same discrimination, according to the EEOC time limits page.
The FMLA and the ADA have different employer-size tests: 50 or more employees for the FMLA and 15 or more for the ADA. The FMLA vs ADA comparison lays out how the two differ. For filing steps, see the EEOC complaint guide, and for disability as one form of bias, see workplace discrimination.
State Sick-Leave Laws and When Nothing Protects You
Paid sick leave for private-sector workers comes from state or city law, because no federal law requires private employers to provide it. Many states and cities require paid sick leave, and many of those laws also bar retaliation for using it. The rules and amounts differ by place, and this page does not list each state's law.
If no law covers your situation, an employer can generally enforce a reasonable attendance policy applied the same way to everyone. That includes firing for absences. In that case, the answer to "can I be fired for being sick" is usually yes.
Here is how the facts above combine. A worker at a 10-person private company, out with the flu, in a place with no sick-leave law, falls outside the FMLA (fewer than 50 employees) and the ADA (fewer than 15 employees, and the flu is generally not a disability). The answer can change if the employer has 15 or more employees and the illness is chronic, or if a state or city sick-leave law covers the absence.
Fired After Asking for Leave or Complaining
A firing that follows a workplace complaint, such as asking for leave or reporting discrimination, may be unlawful retaliation.
The FMLA has its own ban on firing someone for exercising FMLA rights. Many state paid sick-leave laws also bar retaliation for using the leave. The workplace retaliation guide covers how these claims are built.
Write down the date you asked for leave or complained, and the date you were fired.
What to Do After You Were Fired for Being Sick
After a firing, your first job is to preserve evidence and find your filing deadline. Take these steps:
- Ask your employer for the reason for the firing in writing.
- Keep your doctor's notes, leave requests, texts, and emails.
- Write down the dates you called in sick, asked for leave, and were fired.
- Note whether your employer had 15 or more employees, and whether it had 50 or more.
These records preserve evidence. They do not guarantee a claim.
| Law | Where to file | Deadline |
|---|---|---|
| FMLA | Complaint with the Department of Labor Wage and Hour Division, or a lawsuit | Lawsuit generally within 2 years of the violation, or 3 years if willful |
| ADA | Charge with the EEOC | 180 days, or 300 days where a state or local agency enforces a similar law |
| State or local sick-leave law | Differs by state and city | Differs by state and city |
Deadlines are strict and run from specific dates. If you are unsure which date starts the clock, treat the earliest possible date as your deadline.
If you think you were fired for being sick, write down your firing date today and count 180 days forward to find your earliest possible EEOC deadline.
Frequently Asked Questions
Can I be fired for being sick?
Sometimes. Being sick is not a protected reason by itself under at-will employment. The FMLA, the ADA, and many state and local sick-leave laws make it illegal to fire you for a covered illness or for using protected leave.
Can I be fired for calling in sick?
It depends on whether a law covers the absence. If the absence is FMLA leave, protected sick leave under a state or city law, or tied to a disability under the ADA, firing you for it can be illegal. If no law applies, an employer can generally fire for absences under a reasonable attendance policy applied the same way to everyone.
Can I be fired for being sick if I have no sick days left?
Yes, unless another law covers you. FMLA leave is unpaid, and eligible employees of covered employers can take up to 12 workweeks of job-protected leave for a serious health condition. The ADA can also protect you if your illness is a disability and your employer has 15 or more employees.
Does the FMLA protect me if I get fired for being sick?
Yes, if you are eligible and your employer is covered. The FMLA makes it unlawful to interfere with your leave rights or to fire you for using them. You can file a complaint with the Department of Labor Wage and Hour Division, and a lawsuit generally must be filed within two years, or three years if the violation was willful.
Is it wrongful termination to be fired for a chronic illness?
It can be. A chronic illness such as diabetes, cancer, or epilepsy can be a disability under the ADA, which applies to employers with 15 or more employees. The ADA bars firing a qualified employee because of a disability, and an EEOC charge must be filed within 180 days, or 300 days in some places.
What should I do if I was fired for being sick?
Ask for the reason in writing, keep doctor's notes, leave requests, texts, and emails, and write down the dates of your call-in, request, and firing. Note whether your employer had 15 or 50 employees. Then speak with a licensed attorney before the earliest possible filing deadline passes.
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