Using sick days is a normal and expected part of any job. Still, many California employees worry that taking what an employer considers “too many” sick days could put their job at risk, even when absences are legitimate.
California law does allow employers to maintain attendance policies, but employers cannot terminate or retaliate against employees for using sick leave that is protected under state law.
California’s Paid Sick Leave Law
Under the Healthy Workplaces, Healthy Families Act of 2014, employees in California are entitled to paid sick leave, as the law applies to full-time, part-time, temporary, and seasonal workers who have worked at least 30 days within a year for the same employer.
Employees accrue at least one hour of paid sick leave for every 30 hours worked, though some employers may offer more generous policies. As such, workers can begin using their accrued sick time after 90 days of employment.
In addition, as of January 1, 2024, the state increased the mandatory minimum of sick days from 3 days (24 hours) to 5 days (40 hours) per year. Some cities, like Los Angeles, San Francisco, and Oakland, have local ordinances that provide even more generous benefits.
Can an Employer Fire Their Workers for Using Sick Leave?
In most cases, it is unlawful for an employer to fire, demote, or discipline their employees for using their earned sick leave. California Labor Code § 246.5 explicitly prohibits retaliation against employees who use or request paid sick time.
Some employers try to disguise retaliation as an “attendance policy violation,” such as labeling protected sick-leave absences as “excessive” even when the employee was legitimately ill and entitled to take that time off.
When Sick Leave Is Protected
A worker’s sick days are protected when they are used for:
- Personal illness, injury, or preventive care
- Caring for a family member (child, spouse, registered domestic partner, parent, grandparent, grandchild, or sibling)
- Time off related to domestic violence, sexual assault, or stalking (Labor Code § 230 and 230.1)
In addition, if an employee is covered under other leave laws such as the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA), they may also be entitled to additional unpaid, job-protected leave for serious health conditions.
When an Employer Might Take Disciplinary Action
While workers can’t be fired for taking protected sick leave, their employer may take disciplinary action in certain situations, such as taking more sick days than they have accrued, failing to follow the employer’s notice or documentation policies, misrepresenting the reason for the absence, or missing work frequently outside of protected leave.
Employers are allowed to enforce neutral attendance policies as long as they are applied consistently and do not punish employees for exercising their legal rights.
Signs of Retaliation
If an employer’s attitude toward their employee changes after they use their sick days, that could be a sign of workplace retaliation. In fact, common examples of retaliation include:
- Being written up or demoted shortly after calling in sick
- A sudden reduction in hours or pay
- Negative performance reviews following legitimate absences
- Termination soon after taking protected leave
If any of this occurs, it is important for employees to document all communications and disciplinary actions. Detailed records can serve as crucial evidence when pursuing a retaliation or wrongful termination claim.
How to Respond If an Employer Fires Someone for Taking Sick Days
If a worker believes that they were wrongfully terminated or retaliated against for using sick leave, they have options to reclaim justice. It is highly recommended to consult with an experienced employment attorney who can help determine if the employer violated any laws and provide better insight to the situation and what actions can be done. If an employee believes the termination was unlawful, they can pursue a wrongful termination claim to seek reinstatement, back pay, or other compensation depending on the circumstances.
Contact Our California Employment Lawyers
If any workers were disciplined or terminated after using sick days, the legal team at Lawyers for Justice, P.C. fight for their client’s rights so that negligent employers are held responsible for their actions. With over a decade of experience representing workers from all walks of life, the legal team at Lawyers for Justice, P.C. crafts a personalized legal strategy to fight for fair compensation.
Call 818-JUSTICE or fill out our online contact form today for a free, confidential consultation.