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Can My Employer Fire Me for Using Sick Leave?


Your employer isn’t legally protected from firing you when you use accrued sick leave, but any time you take off of work beyond this amount could put your employment in jeopardy.

California's labor laws offer significant protections for employees, especially concerning the use of sick leave. However, many workers still worry about job security when taking advantage of these rights. Keep reading to learn more about this topic.

California's Paid Sick Leave Law

As of January 1, 2024, employees in California are entitled to 40 hours or five days of paid sick leave each year, whichever is more. The Healthy Workplaces, Healthy Families Act of 2014 established paid sick leave for employees in California, which was previously limited to 24 hours or three days of paid sick leave per year. 

This law covers most employees, including part-time and temporary workers. Employers may offer more generous sick leave policies, but they cannot provide less than the state-mandated minimum. Employees can use sick leave for their own illness, the illness of a family member, or for preventive care. 

Additionally, the allocation of sick time favors the employee. For example, if an employee works 10-hour shifts, then they can effectively take up to 50 hours of sick time by using five sick days. Likewise, if an employee works six hours per week, they can take six sick days with four sick hours remaining. 

Protection Against Retaliation

California law explicitly prohibits employers from retaliating against employees who use their accrued sick leave. Retaliation includes any adverse action such as termination, demotion, suspension, or other forms of discrimination. If an employer fires an employee for using sick leave, it constitutes unlawful retaliation under California law.

When preparing a claim of retaliation, the employee must show:

  • They engaged in a protected activity (using accrued sick leave).
  • They suffered an adverse employment action (such as being fired).
  • There is a causal link between the protected activity and the adverse action.

Employees who believe they have been retaliated against can file a complaint with the California Labor Commissioner’s Office. The law protects employees from being fired for using their legally entitled sick leave, ensuring they can prioritize their health and the health of their loved ones without fear of losing their job.

What If I Don’t Have Any More Sick Time?

If you have depleted or not yet accrued enough sick time, you may not be protected from retaliation if you fail to report to work. Your employer may be legally able to reprimand you as long as its motivation for doing so isn’t actually based on your race, sex, age, disability status, or another legally protected characteristic.

Should you require more time off to address an illness, communicating with your employer about the situation can help you avoid consequences for which you may have no legal recourse.

Documentation & Verification

Employers may require reasonable documentation for sick leave if the employee uses more than three consecutive days. Acceptable documentation can include a doctor's note or other forms of verification from a health care provider. However, the request for documentation must be reasonable and not unduly burdensome.

Employees must provide notice of their need to use sick leave if foreseeable. For unforeseeable circumstances, employees should notify their employer as soon as practicable. Clear communication and documentation can help prevent misunderstandings and potential disputes over sick leave usage.

Extended Medical Leave

In addition to paid sick leave, California employees may be entitled to extended medical leave under other laws such as the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). These laws provide eligible employees with up to 12 weeks of unpaid, job-protected leave per year for serious health conditions, among other reasons.

To qualify for FMLA or CFRA leave, an employee must:

  • Have worked for the employer for at least 12 months.
  • Have worked at least 1,250 hours in the 12 months preceding the leave.
  • Work at a location where the employer has 50 or more employees within 75 miles.

Employers cannot terminate or retaliate against employees for taking FMLA or CFRA leave. These laws provide additional layers of protection, ensuring that employees dealing with serious health issues have the necessary time to recover without risking their employment.

Seeking Legal Recourse

If an employee believes they were wrongfully terminated or retaliated against for using sick leave, seeking legal advice is crucial. Employment attorneys can offer guidance and help navigate the complex legal landscape. They can assist in filing complaints with the appropriate agencies or pursuing legal action against the employer.

Employees can file a retaliation complaint with the California Labor Commissioner’s Office within one year of the retaliatory act. The Labor Commissioner’s Office investigates complaints, and if it finds merit, it can order remedies such as reinstatement, back pay, and penalties against the employer. Alternatively, employees may choose to file a lawsuit in civil court.

Contact Us for Legal Assistance

If you believe your employer unlawfully retaliated against you for using your accrued sick time, you can explore your legal options with K2 Employment Law. By taking advantage of a free initial consultation with us, you can learn more about your rights during this time and how you can assert them to seek compensation for damages your employer caused.

Contact us online now to get started today.

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