Can You Be Fired for Being Sick?

By Douglas Lipsky

New York is an at-will state for employment purposes, meaning that an employee can be fired for any reason, including being sick. When a “sickness” is considered a disability, however, firing a sick employee may constitute employment discrimination under federal, state, and local law. 

If you believe you were illegally fired for being sick and disabled, talk to an employment lawyer. In the meantime, let’s take a look at when a termination over sickness may result in a disability discrimination claim. 

What is a disability?

The definition of a “disability” differs under city, state and federal laws. Under federal law, a disability is defined as a mental or physical impairment that significantly impairs one or more major life activities. 

The definition of a disability under New York State law goes further to include any mental, physical, or medical impairment that prevents the exercise of a normal bodily function. An employee does not need to prove that his or her disability impairs a major life activity. 

New York City law provides even greater protections to employees, defining a disability as any actual or perceived mental, medical, physical, or psychological impairment. In short, an employer can be held liable for firing an employee designated as disabled under local, state, or federal law.

When Is Terminating a Sick Employee Wrongful?

An employer can be held liable for firing a sick employee if the employee’s sickness constitutes a disability under applicable laws. Disabled employees are protected from being fired due to their disability under several laws, including:

  • The Americans with Disabilities Act (ADA)
  • The Family and Medical Leave Act (FMLA)
  • The New York State Human Rights Law (NYSHRL)
  • The New York City Human Rights Law (NYCHRL)

Additionally, an employer may be required to provide a disabled employee a reasonable accommodation (e.g. flexible schedule, remote work) unless doing so would cause an undue burden to the company’s operations (e.g. cost, staff shortages). 

Employers are required to engage in a collaborative process with the sick employee to determine whether a reasonable accommodation is workable. Finally, an employer that terminates a disabled employee without discussing the request for an accommodation may be held liable for wrongful termination. 

Employer Obligations to Sick Employees

Under the FMLA, eligible employees are permitted to take up to 12 weeks of unpaid sick leave, but only for serious medical conditions, such as cancer, diabetes, and mental illnesses. Generally, the FMLA requires an employer to keep the employee’s position open throughout the duration of the leave and prohibits employers from firing employees solely for taking FMLA leave.

In addition, sick employees have protection under New York City law. Employers with at least 5 employees who work more than 80 hours a year must provide paid sick leave to their employees. Employers with less than 5 employees who work more than 80 per hour a year are only required to provide unpaid sick leave. 

What to Do if You Have Been Fired for Being Sick

If your sickness constitutes a disability and you have been denied a reasonable accommodation or terminated, you need an experienced employment discrimination attorney at your side. Depending on the facts of your case you may be able to recover damages such as:

  • Lost wages (back pay, front pay)
  • Lost bonuses, commissions
  • Lost benefits
  • Pain and suffering
  • Emotional distress
  • Attorneys’ fees and legal costs

Don’t take being fired for a sickness or disability lying down. Contact an employment lawyer today at Lipsky Lowe.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.