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In New York City, your employer generally cannot fire you for taking protected sick leave. If you use sick time under the law and follow your employer’s policies, termination or discipline for calling out sick may be illegal retaliation.
What Sick Leave Laws Apply in NYC?
Employees in New York City are protected under the New York City Earned Safe and Sick Time Act (ESSTA).
This law allows eligible employees to:
- Earn sick leave based on hours worked
- Use leave for personal illness, medical appointments, or caring for a family member
- Use “safe time” for certain personal or family safety issues
Depending on your employer’s size, this leave may be paid or unpaid.
When Is It Illegal to Fire You for Calling Out Sick?
It may be unlawful for your employer to fire or discipline you if:
- You used accrued sick leave for a valid reason
- You followed your employer’s call-out or notice procedures
- You provided documentation when required
- Your leave qualifies under NYC or New York State law
In these situations, termination could be considered retaliation.
When Can an Employer Still Take Action?
Employers are not prohibited from enforcing reasonable workplace policies. You may still face discipline if:
- You did not follow required call-out procedures
- You exceeded your available sick leave
- You misused sick leave (e.g., dishonesty about the reason)
- Your absence violated a neutral attendance policy
The key question is whether the action is based on legitimate policy enforcement or your use of protected leave.
What About “At-Will” Employment in New York?
New York is an at-will employment state, meaning employers can generally terminate employees for any lawful reason.
However, they cannot terminate you for an unlawful reason, such as:
- Using protected sick leave
- Requesting leave under applicable laws
- Reporting violations of workplace policies or laws
Even in an at-will environment, legal protections still apply.
What If You Are Fired After Calling Out Sick?
If you are terminated after taking sick leave, consider:
- Whether you had accrued leave available
- Whether you followed company procedures
- The timing of your termination
- Any prior disciplinary history
A sudden termination shortly after using sick leave may raise concerns about retaliation.
Additional Protections That May Apply
Depending on your situation, other laws may also provide protection:
- The New York Paid Sick Leave Law
- The Family and Medical Leave Act (for eligible employees)
These laws may offer additional rights, particularly for extended or serious health conditions.
Steps to Take if You Think You Were Fired Unfairly
If you believe your termination was related to calling out sick:
- Gather documentation – Sick leave balances, pay stubs, and attendance records
- Save communications – Emails or messages about your absence
- Review company policies – Check your employee handbook
- Write down timelines – Note when you called out and when action was taken
- Speak with an attorney – Before filing a complaint or claim
These steps can help clarify whether your rights were violated.
What Remedies May Be Available?
If your employer violated sick leave laws, you may be entitled to:
- Reinstatement to your position
- Back pay for lost wages
- Compensation for damages
- Civil penalties against the employer
The outcome depends on the facts of your case and the applicable law.
Protecting Your Right to Take Sick Leave
Taking time off when you are sick should not put your job at risk. NYC law provides meaningful protections for employees who use earned sick leave, but those protections depend on how the leave is used and documented.
If your employer took action against you after you called out sick, turn to Lipksy Lowe. We will assess your situation, determine whether your rights were violated, and pursue all available remedies. Contact us today to get started with an experienced employment lawyer.