Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
Last week, my boyfriend broke out in a skin rash. He visited a doctor who diagnosed him with scabies. He immediately started his medication and told his employer of the situation. His employer insisted that he not return to work until the rash was completely gone. He has missed a total of 5 work days due to the scabies. He showed his employer a doctor note explaining the situation. Today my boyfriend was terminated from his job. His boss explained that he had missed too many days of work. Is it legal for an employer to advise you to stay home from work due to a contagious illness, and then turn around and fire you for this very reason?
Most jobs in this country are at-will, which means that the employee or employee can terminate the employment relationship for any reason and without notice. There are some important exceptions to this rule, including medical leave. Additionally, any contract agreement between an employee and employer will usually over-ride an at-will work arrangement.
The federal Family Medical Leave Act (FMLA) may protect your boyfriend. This law requires that employers with more than 40 employees must provide unpaid leave for medical purposes for qualifying employees (generally more than part-time and employed for at least a year). These purposes include major illnesses of the employee or his immediate family, as well as minor illnesses. The employee must give advance notice of the need for leave if possible, as well as provide other information if requested by the employer. An employer can still refuse to keep a job for someone for certain reasons, but those do not appear to apply here. If your boyfriend’s employer has more than 40 employees, it may not be able to terminate your boyfriend. Some states have similar laws that protect employees of smaller employers.
If your boyfriend or his employer is not covered by FMLA or a similar law, your boyfriend may still be able to establish that his termination was a breach of an employment contract. If your boyfriend has a contract outlining reasons for termination and policies for sick leave, he should refer to it to see whether his employer’s actions breached any part of the contract. If he does not have an actual contract, he may still be able to establish that he had an implied contract. Any written policies or employee handbooks, as well as the employer’s usual treatment of ill employees, can be used to establish
that an implied contract exists. If your boyfriend can establish that a contract exists, he would then need to establish that his termination was a breach of that contract.
Whether your boyfriend can make an FMLA claim or a breach of contract claim will depend on the specific facts of his employment situation. An attorney specializing in employment law will be able to assist him in determining whether he has a claim, and whether it is worthwhile to pursue the claim.
