Introduction: Can You Really Be Fired for Calling Out Sick?
You wake up feeling miserable—headache, fever, sore throat. You know you’re in no condition to work, so you call out sick. But as you hang up the phone, a nagging question lingers in your mind: “What if my boss gets angry? Could I lose my job for this?”
If this scenario feels all too familiar, you’re not alone. Many New Jersey employees worry about job security when illness strikes, especially if they’ve already used several sick days. The fear of being labeled “unreliable” or even fired for taking time off is real.
Here’s the good news: New Jersey law provides protections for employees who need to call out sick. While employers have some discretion, there are clear legal boundaries they cannot cross.
In this article, we’ll break down:
- ✅ When an employer can—and cannot—fire you for calling out sick in NJ.
- ✅ Your rights under NJ sick leave laws, FMLA, and ADA protections.
- ✅ What to do if you believe you’ve been wrongfully terminated due to illness.
Let’s clear the confusion and help you understand your rights.
Understanding At-Will Employment in NJ
New Jersey is an at-will employment state, which means:
- Employers can terminate employees at any time, for almost any reason—or no reason at all—without prior notice.
- Employees can quit their jobs at any time without facing legal consequences.
⚠️ But There’s a Catch:
At-will employment doesn’t give employers unlimited power. They cannot fire someone for reasons that violate federal or state laws, including laws related to sick leave.
✅ Legal Reasons for Termination Include:
- Poor job performance
- Company downsizing
- Violations of company policies
❌ Illegal Reasons for Termination Include:
- Retaliation for using protected sick leave
- Discrimination based on disability, age, race, or other protected characteristics
- Violating leave protections under the Family and Medical Leave Act (FMLA) or New Jersey Family Leave Act (NJFLA)
Visual Suggestion:
Infographic titled “At-Will Employment vs. Illegal Termination” showing legal and illegal reasons for termination.
What Does NJ Law Say About Sick Leave?
✅ Key Legal Protections for NJ Employees:
- New Jersey Earned Sick Leave Law (ESLL):
- Applies to nearly all employees in NJ, including full-time, part-time, and seasonal workers.
- Employees earn 1 hour of sick leave for every 30 hours worked, up to 40 hours per year.
- Protected reasons for using sick leave include:
- Personal illness or injury
- Caring for a sick family member
- Attending medical appointments
- Dealing with domestic or sexual violence issues
- Public health emergencies (like COVID-19 exposure)
- Family and Medical Leave Protections:
- New Jersey Family Leave Act (NJFLA): Offers up to 12 weeks of job-protected leave to care for a family member with a serious health condition.
- Family and Medical Leave Act (FMLA): Federal law providing up to 12 weeks of unpaid, job-protected leave for personal or family medical issues.
- Americans with Disabilities Act (ADA):
- Protects employees with disabilities, including chronic illnesses.
- Employers must provide reasonable accommodations, which can include time off for medical treatment.
| Category | NJ Earned Sick Leave | NJFLA (NJ Family Leave Act) | FMLA (Family & Medical Leave Act) |
|---|---|---|---|
| Coverage | Most NJ employees (full-time, part-time, seasonal) | Employees at businesses with 30+ employees | Employees at businesses with 50+ employees |
| Reason for Leave | Personal illness, caring for family, domestic violence, public health emergencies | Caring for a family member with a serious health condition or new child | Personal illness, family medical needs, birth/adoption of a child |
| Duration | Up to 40 hours per year | Up to 12 weeks in 24 months | Up to 12 weeks in 12 months |
| Job Protection | Yes, for valid reasons | Yes, job must be restored | Yes, job must be restored |
| Paid Leave | Yes, employer must provide paid leave | No, leave is unpaid | No, leave is unpaid |
| Employer Size | All employers, regardless of size | Employers with 30+ employees | Employers with 50+ employees |
Can You Be Fired for Calling Out Sick Too Often in NJ?
⚠️ Yes, But It Depends on the Circumstances:
✅ When Termination May Be LEGAL:
- Excessive Absences Beyond Protected Leave:
- If you’ve used all your protected sick leave (e.g., exceeded 40 hours under NJ ESLL) and continue to miss work without medical documentation, your job could be at risk.
- Policy Violations:
- Repeatedly failing to follow your company’s absence reporting procedures.
- Unexcused Absences Without Documentation:
- Employers can request reasonable proof (like a doctor’s note) for absences longer than three consecutive days.
❌ When Termination May Be ILLEGAL:
- Retaliation for Using Protected Sick Leave:
- If you were fired shortly after using NJ ESLL or FMLA leave, this could be illegal retaliation.
- Disability Discrimination:
- If you have a medical condition protected under the ADA and your employer fires you instead of providing reasonable accommodations.
- Violation of Family Leave Protections:
- Terminating an employee while they’re on NJFLA or FMLA leave is unlawful.
🚩 Example of Potential Illegal Firing:
Lisa used 40 hours of earned sick leave to care for her sick child. A week later, she was fired for “unreliability.” Since her absences were protected under NJ law, this termination could be illegal retaliation.
| Legal Reasons for Termination After Sick Leave | Illegal Reasons for Termination After Sick Leave |
|---|---|
| Absences exceed protected leave limits | Fired shortly after using NJ Sick Leave, FMLA, or NJFLA |
| No medical documentation provided when required | Terminated in retaliation for requesting sick leave |
| Sick leave policies were violated (e.g., no notice given) | Fired while on legally protected leave |
| Employer applies absence policies consistently | Fired due to a medical condition covered under the ADA |
| Company restructuring or downsizing (not related to sick leave) | Employer denies sick leave that is legally protected |
Red Flags That Your Firing Might Be Illegal
If you’ve been fired after calling out sick, look out for these warning signs:
🚩 Common Red Flags:
- Retaliation Patterns:
- You were fired shortly after using protected sick leave.
- Inconsistent Policy Enforcement:
- Other employees with similar attendance issues weren’t punished.
- Sudden Shift in Treatment:
- Positive performance reviews followed by termination after medical absences.
- Suspicious Timing:
- Termination immediately after requesting leave or accommodations.
- Vague or Shifting Explanations:
- Your employer keeps changing the reason for your termination.
Termination After Sick Leave
Real-Life Example:
Mark called out sick due to COVID-19 exposure. A week later, his employer claimed “budget cuts” as the reason for firing him—but no other employees were laid off. This could be illegal retaliation under public health protections.
Real-Life Case Study: John’s Story
Scenario:
John, a retail employee in New Jersey, frequently called out sick due to a chronic health condition. He provided medical documentation as required by company policy. Despite this, he was fired for “excessive absenteeism.”
Legal Outcome:
John contacted Swartz Swidler, who identified his case as potential disability discrimination under the ADA. The firm helped John file a claim, proving that his employer failed to provide reasonable accommodations for his condition.
- Result: John received a settlement covering lost wages, emotional distress damages, and attorney’s fees.
Lesson:
“Even if an employer claims you were fired for attendance issues, it could be illegal if your absences were due to a protected medical condition.”
🔍 Case Study: John’s Story
📍 Location: New Jersey
✅ Scenario:
John worked in retail and frequently called out sick due to a chronic health condition. He always provided medical documentation as required by company policy. Despite this, he was fired for “excessive absenteeism.”
🚩 What Happened?
- John’s employer ignored the fact that his absences were protected under the ADA (Americans with Disabilities Act).
- He was terminated without being offered reasonable accommodations for his condition.
- The company claimed he was unreliable, but his performance record showed no issues.
⚖️ Legal Outcome:
John contacted an employment lawyer who identified his firing as potential disability discrimination under the ADA.
🔹 Result: John filed a legal claim and received a settlement covering:
- ✔️ Lost wages
- ✔️ Emotional distress damages
- ✔️ Attorney’s fees
💡 Key Takeaways:
- If you are fired for taking sick leave due to a medical condition, your termination could be illegal.
- Employers must provide reasonable accommodations for disabilities before firing an employee.
- Seeking legal advice can help determine if you have a wrongful termination case.
📞 Think your termination was unfair? Contact an employment attorney today.
What Should You Do If You Were Fired for Calling Out Sick?
If you believe you were wrongfully terminated, here’s how to protect your rights:
📋 Step-by-Step Action Plan:
- Document Everything:
- Keep records of your sick leave requests, emails with HR, termination letters, and any medical documentation.
- Review Your Company’s Sick Leave Policy:
- Check for inconsistencies in how the policy is applied to different employees.
- Determine If Your Absences Were Protected:
- Did you use NJ ESLL, FMLA, or NJFLA leave? Were your absences covered under the ADA?
- Consult an Employment Lawyer:
- Swartz Swidler can evaluate your case, determine if your rights were violated, and guide you through the legal process.
“Think you were wrongfully terminated? Contact Swartz Swidler for a free case evaluation today.”
What Legal Remedies Are Available?
If your termination was unlawful, you may be entitled to the following remedies:
💼 Potential Outcomes:
- Reinstatement: Getting your job back (rare but possible).
- Back Pay: Compensation for lost wages from the date of termination.
- Front Pay: Compensation for future lost wages if reinstatement isn’t possible.
- Emotional Distress Damages: Compensation for stress and emotional harm caused by wrongful termination.
- Punitive Damages: In cases of severe misconduct by the employer.
- Attorney’s Fees: Reimbursement for legal costs.
Frequently Asked Questions About Being Fired for Calling Out Sick
- ❓ Can I be fired for using all my sick days in NJ?
- No, if those sick days are protected under NJ’s Earned Sick Leave Law. Firing you for using protected sick leave could be illegal.
- ❓ Do I need a doctor’s note to protect my job?
- Yes, if your absence lasts more than three consecutive days, your employer can request documentation.
- ❓ What if my employer says my absences are excessive even with medical documentation?
- If your absences are protected under the NJ ESLL, FMLA, or ADA, termination may be illegal.
- ❓ Can I sue if I was fired for being sick?
- Yes, if your termination violated state or federal leave protections, you may have grounds for a wrongful termination lawsuit.
Conclusion: Know Your Rights—Don’t Let Illness Cost You Your Job
Getting sick is a part of life, and you shouldn’t lose your job because of it—especially when the law is on your side. While New Jersey’s at-will employment laws give employers flexibility, they cannot violate state or federal protections related to sick leave, family medical leave, or disability accommodations.
📞 Contact Swartz Swidler Today
If you’ve been fired for calling out sick and believe your rights were violated, don’t wait. Our experienced employment law attorneys are here to help. Schedule a free consultation to discuss your case and protect your rights.
