Everything You Need to Know About Unlawful Termination & Sick Leave
California’s labor laws provide significant protection for employees, particularly regarding the use of sick leave. However, many workers still worry about job security when exercising these rights.
Your employer isn’t legally protected from firing you when you use accrued sick leave, but any time you take off work beyond this amount could put your employment in jeopardy. Understanding when sick leave is protected, and when it isn’t, can help you avoid risks and recognize when your employer crosses the line.
For example, if you called out sick with the flu using your accrued sick time and your supervisor wrote you up the next day for “attendance issues,” this may qualify as retaliation. If you were fired shortly after, it becomes even more suspicious. Let’s explore how California’s sick leave laws protect employees, what counts as unlawful retaliation, and what steps you can take if you believe your rights have been violated.
California’s Paid Sick Leave Laws
As of January 1, 2024, employees in California are entitled to 40 hours or five days of paid sick leave each year, whichever provides more time off. This expansion came through updates to the Healthy Workplaces Healthy Families Act of 2014, which originally guaranteed only 24 hours or three days.
This law applies to most employees, including:
- Full-time
- Part-time
- Temporary
- Seasonal workers
Employers can choose to offer more generous policies, but they cannot provide less than the state minimum.
Paid sick leave can be used for:
- Your own illness, injury, or medical appointment
- A family member’s illness or preventive care
- Situations related to domestic violence, sexual assault, or stalking
- Public health emergencies (e.g., workplace shutdowns due to exposure)
Employee-Favorable Sick Leave Calculations
California's law interprets “days” based on the employee’s normal workday. For example:
- If you work 10-hour shifts, five paid sick “days” equal 50 hours of protected sick time.
- Someone who works 6 hours per day can use six full sick days and still have four hours left over.
Example of Sick Leave Miscalculation
A nurse who works three 12-hour shifts per week is entitled to use five “days” of sick leave: meaning 60 hours, not 40. Many employers incorrectly cap sick leave at 40 hours, which can lead to wage violations. Understanding how your workday affects sick leave ensures you’re receiving the full amount of protected time you’ve earned.
How Overtime Affects Paid Sick Leave Calculations
Although California employees don’t receive automatic overtime pay for hours taken as sick leave, overtime still plays a role in how sick leave is paid.
Under state law, sick time must be compensated at the employee’s regular rate of pay, which is an average hourly rate that includes:
- Recent overtime earnings
- Double-time pay
- Non-discretionary bonuses
- Commissions
- Piece-rate earnings
This means that if you regularly work overtime or receive performance-based compensation, your sick leave may be paid at a higher rate than your standard hourly wage. California’s wage laws require employers to calculate this rate accurately, and any errors can result in wage and hour violations.
Example of Unlawful Underpayment
If you regularly work overtime during the holidays and earn time-and-a-half, those OT earnings must be included when calculating your regular rate. If your employer pays you for sick days at your base rate only, that could constitute unlawful underpayment.
Because miscalculations are common, especially for employees with fluctuating schedules, workers who notice discrepancies should review their rights under California’s wage and hour laws and seek legal guidance if necessary.
Protection Against Retaliation
California law explicitly prohibits employers from retaliating against employees who use their legally accrued sick leave.
Retaliation can include:
- Termination
- Demotion
- Reduction in hours
- Suspension
- Negative performance reviews
- Harassment or intimidation
If an employer fires an employee for using their accrued sick leave, that action constitutes unlawful retaliation.
Example of Unlawful Retaliation
Say you used two accrued sick days for a medical appointment, and when you returned, your employer cut your shifts, claiming you were “unreliable.” Even though the employer didn’t fire you, reducing hours after protected leave can still be considered retaliation.
To prove retaliation as an employee, you must show:
- Protected activity: You used accrued sick leave.
- Adverse action: You were fired, demoted, penalized, etc.
- Causal connection: Evidence shows that the sick leave triggered the employer’s action.
Employees can file a complaint with the California Labor Commissioner’s Office or pursue a wrongful termination claim in court.
What If I Don’t Have Any More Sick Time?
Suppose you’ve used all your paid sick leave or haven’t accrued enough yet. In that case, your employer generally has the right to discipline or terminate you for absences, as long as the reason isn’t discriminatory or retaliatory.
For example, taking an additional day off without approval may lawfully result in a warning, but if your employer fires you because your illness relates to a disability (such as migraines, diabetes, or pregnancy complications), that could constitute illegal discrimination.
Examples of illegal motives include:
- Disability discrimination
- Termination based on taking qualified medical leave
- Firing someone for their race, gender, pregnancy status, age, etc.
Because unprotected absences can jeopardize your employment, effective communication is crucial.
Notify your employer as soon as possible and ask whether additional leave may be available under:
- Company policy
- Family & Medical Leave Act (FMLA) (check out our blog to see if you qualify)
- California Family Rights Act (CFRA)
- Paid Family Leave (PFL)
- Disability accommodations
- Local city ordinances (many offer additional protections)
Documentation & Verification Requirements
Employers may request reasonable documentation if an employee uses more than three consecutive days of sick leave. They cannot make documentation demands that are unnecessarily burdensome or invasive.
Documentation may include:
- A doctor’s note
- Verification from a clinic, hospital, or urgent care
- A note explaining ongoing medical treatment
Employers cannot require:
- A detailed medical diagnosis
- Medical records
- Excessive paperwork for minor illnesses
For example, many employers demand detailed medical notes without authorization. If you take consecutive sick days for a severe cold, your employer may request a doctor’s note confirming your need for time off; however, they cannot require the doctor to disclose your full medical history.
Remember: Employees should give advance notice when the need for sick leave is foreseeable. For emergencies, notice must be provided “as soon as practicable.”
Extended Medical Leave Options (FMLA, CFRA & More)
If your health condition requires more time off, additional protections may apply.
FMLA & CFRA Eligibility Requirements
To be eligible for FMLA & CFRA, you generally must:
- Have worked for the employer 12+ months
- Have logged 1,250 hours in the past year
- Work at a site with 50+ employees (FMLA) or 5+ employees (CFRA)
These laws provide up to 12 weeks of unpaid, job-protected leave, and your employer must restore you to the same or comparable position upon return.
Don’t immediately assume you don’t meet FMLA/CFRA requirements. If you’re hospitalized for appendicitis, your condition will almost always qualify, even if you didn’t have enough sick leave accrued. And if your employer fires you during recovery, that could violate federal and state law.
If Your Condition Is a Disability
Separate laws, established by the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA), may require your employer to offer:
- Extended leave as a reasonable accommodation
- Modified job duties
- Work-from-home arrangements
- Flexible scheduling
The threshold for what counts as a disability under FEHA is very broad, and many temporary medical conditions qualify.
Seeking Legal Recourse
Employees who believe they were retaliated against for using sick leave have several options:
- File a retaliation complaint with the Labor Commissioner within one year
- Pursue a wrongful termination lawsuit
- Seek reinstatement, lost wages, and civil penalties
- Request punitive damages in appropriate cases
Our legal counsel can help evaluate your case and ensure you meet all deadlines and procedural requirements. Employees who experience retaliation tied to a protected characteristic may file EEOC claims in addition to state complaints. Whatever the situation, we can help you navigate complex employment disputes involving sick leave retaliation or other workplace violations.
Frequently Asked Questions (FAQ)
1. Can my employer fire me for using sick leave in California?
No. Firing an employee for using legally accrued sick leave is considered retaliation under California law and is illegal. However, employers can take action if you miss work beyond your protected or accrued leave.
2. What protections do California employees have when they take paid sick leave?
California employees are protected from:
- Termination
- Retaliation
- Discipline for using accrued sick leave
They’re also protected by city-level sick leave ordinances, FMLA/CFRA, and disability laws when applicable.
3. Can my employer retaliate against me for taking legally accrued sick leave?
No. Retaliation for protected sick leave is unlawful. Retaliation includes firing, demoting, reducing hours, or treating you differently because you took leave.
4. Does it matter if I haven’t yet accrued sick leave before I’m terminated after taking time off?
Yes. If you take time off before you’ve accrued the hours, the leave is generally not protected. Employers may discipline you, unless your absence qualifies under another law (e.g., ADA/FEHA disability leave, pregnancy leave, or FMLA/CFRA).
5. What qualifies as wrongful termination after using sick leave in California?
A termination may be considered wrongful if:
- You used accrued sick leave
- Your employer’s action was motivated by your protected leave
- They made negative comments about your absence
- Timing suggests retaliation (e.g., fired immediately after returning)
- They deviated from workplace policy or treated other employees differently
6. Are there special considerations if my illness is a disability under ADA or FEHA?
Yes. If your medical condition qualifies as a disability:
- You may be entitled to additional leave
- Your employer must engage in an interactive process
- Reasonable accommodations must be considered
- Denying leave may itself violate FEHA or ADA
- You could have both a disability discrimination claim and a retaliation claim
These laws often provide more protection than sick leave laws alone. If you have a condition like asthma, PTSD, chronic pain, or pregnancy-related complications, your employer may be required to provide medical leave even if you’ve run out of sick time.
Contact Our Employment Law Attorneys for Personalized Legal Assistance
If you believe your employer unlawfully retaliated against you for using your accrued sick time, don’t hesitate to explore your legal options with K2 Employment Law. Many clients came to us after being written up, denied sick pay, or abruptly fired after taking time off for illness, and didn’t realize they had a case until they spoke with our team.
Our employment law attorneys offer years of experience and draw from in-depth knowledge to create informed legal strategies and advocate for clients throughout the San Fernando Valley. By booking a free initial consultation, you can learn more about your rights and how to pursue compensation for the harm you’ve experienced.
Have you been unlawfully fired for taking sick leave in California? Call (800) 590-7674 or contact us online today to get started.