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Will a Doctor's Note Protect My Job? When Sick Leave is Protected.

Posted by Giovanna A. D'Orazio | Jan 05, 2018

It was recently reported that employees of the railway company CSX were fired for absenteeism during the holidays.  It appears that numerous employees utilized pre-approved FMLA time and were then fired.  The implication is that these employees abused their time in order to have time off during the holidays.  Of course, the employees dispute this suggestion and it's being reported that their union is pursuing remedies and at least some employees are contacting attorneys.

This particular CSX situation is likely to be complicated if these employees were already approved for FMLA leave (they are also subject to union contracts which may provide other remedies).  When an employee is approved for what's called “intermittent” leave, they can take the leave as needed and as provided for in their medical certification and FMLA approval, up to the 12-week FMLA allotment for the year (with certain restrictions that may include utilizing appropriate call in procedures).  Using your FMLA time if you are not in fact incapacitated because of the condition underlying your FMLA approval can, of course, be a fire-able offense.

This article is less about this CSX situation (of which we have no personal knowledge) and more about the comments I read when the article was posted on Facebook. There was an equal amount of “no one has a work ethic anymore” vs. “employers are heartless” vs. “if you have a doctor's note you can't get fired.” It's that last comment about the doctor's note, we want to address here.

As a general matter, having a doctor's note does not necessarily protect you from being fired for absenteeism.  The law protects the jobs of private employees in NY who are absent for illness typically in two ways: (1) under the FMLA (Family and Medical Leave Act); and (2) under the disability discrimination laws like the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYHRL).  (This isn't an exhaustive list and employees may be further protected under union contracts or public employees in New York by the Civil Service Law or General Municipal Law).

Not all illnesses, however, will be covered.  The FMLA applies only to employees of larger (50+ employees) or public employers, who suffer from serious health conditions.  A serious health condition is usually not something like the flu, a cold or a stomach virus.  It is typically an issue requiring surgery or hospitalization or a medical condition that requires a period of follow-up treatment.  The disability discrimination laws also may not apply to minor illnesses suffered by most individuals.  Instead, the ADA requires that a disability substantially limit a major life activity or bodily function.  The NYHRL is more broad than the ADA and, it is possible, given the particular facts of a case, that a disability not covered by the ADA is covered by the NYHRL.  This will come down to the particular facts of an employee's situation.

The take-away is that providing a doctor's note is not necessarily going to protect your job. It may not hurt and could show your employer some proof that you are not abusing your time, but it won't guarantee that you won't be fired for absenteeism.  We encourage employees who do have a serious health condition to speak to their doctors or Human Resources about the availability of FMLA time.  The law also typically imposes an obligation on employees to actually ask for a reasonable accommodation if the medical condition constitutes a disability, so making a formal request is another way to achieve some job protection or at least trigger the employer's obligations to engage in an interactive process under the ADA and NYHRL to attempt to accommodate a disability.

In the same vein, we speak to many employees in the course of our practice, and often they are protective of their medical conditions and do not want to share personal, private and sometimes embarrassing information with their employers.  However, if an employer doesn't know you have an FMLA-condition or a disability, you are going to have a hard time going back and proving some sort of discrimination or interference with your rights if you are fired.  So, if an employee needs time off for a disability or serious health condition, we encourage them to share the reason.  There is no guarantee that you will not be retaliated or discriminated against, but at the very least you will have some proof that you were not abusing your time or being excessively absent without a potentially protected reason.  Best case scenario your employer will do the right thing and notify you of your rights and work with you to accommodate your situation.  If you are concerned about appropriate procedures, check your employee handbook which should include FMLA and ADA policies. 

If you feel you were wrongfully terminated after using sick time, give us a call. We are happy to see if there is anything we can do to help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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