Can I be Fired for Sick Days due to Fibromyalgia & Chronic Fatigue Syndrome?

Know What the Laws Protect, and What They Don't

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Laws may prevent you from being fired for taking sick time due to fibromyalgia & chronic fatigue syndrome. StockLib/Getty Images

Question:

I've missed a lot of work recently because of fibromyalgia and chronic fatigue syndrome and I'm really worried that I'm going to lose my job because of it. Can I be fired for missing too many days, even though my employer knows that I'm chronically ill?

Answer:

In the U.S., you have several laws protecting your ability to keep working in spite of chronic illness. The Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are federal laws, so they apply across the country.

Individual state laws may apply, as well. You should also know what, if any, policies your employer has regarding excessive sick time and disciplinary action.

The FMLA

Even though it's a federal law, the FMLA only covers certain businesses. You and your workplace are covered IF:

  • You've worked there for at least a year,
  • AND you've put in at least 1,250 hours in the past year,
  • AND your employer has 50 or more employers within a 75-mile radius.

In addition to prolonged leaves of absence, such as maternity leave, the FMLA allows you to take what's called intermittent leave for a serious health problem. That's what your sporadic sick days would fall under, as long as they're related to your chronic conditions.

Is your health problem legally considered "serious"? Along with pregnancy, hospitalization, or conditions requiring long-term care, the Department of Labor considers an illness serious if it's a chronic condition that causes periods of incapacity.

Your employer is required to allow you up to 12 total weeks a year of leave, which averages out to five missed days per month. However, the company isn't required to pay you for any of this (beyond what sick time you may have.) That 12 weeks is your total leave, not just intermittent, so if you take 8 weeks maternity leave, that only leaves you 4 weeks – 20 intermittent days – for the rest of the year.

To qualify for intermittent leave, you need to provide medical certification of your illness. You can't be disciplined in any way for taking leave under the FMLA.

This doesn't mean, though, that continued regular absences won't impact your employment. If your boss determines that the days you miss interfere with your ability to do your job, you can be transferred to a comparable job – one that has at least the same pay and benefits as your current position and isn't less desirable – if possible. It's also possible that the company won't have a job that's suitable for someone who has to miss a lot of workdays, and that could put you out of work.

Once FMLA leave is used up, you can be disciplined or fired for calling in sick IF you don't qualify as disabled under the ADA (unless state laws or employer policies provide additional protections.)

The ADA

The legal definition of "disabled," for the purposes of the ADA, is having a physical or mental condition that substantially limits a major life activity (i.e., walking, talking, learning.)

Any business with at least 15 employees has to abide by the ADA's requirement of reasonable accommodations for disabled employees – as long as you're able to perform the essential functions of the job.

For example, when I was in college, I worked as a waitress. The restaurant policy said I had to carry everything by hand instead of on a tray. When I developed carpal tunnel disorder and could no longer grip multiple things in one hand, my manager got small trays for me. I also got extra breaks so I could rest and stretch my arms and changed shifts so I didn't work on back-to-back days. The accommodations worked. If they hadn't, I could have been let go.

For fibromyalgia and chronic fatigue syndrome, reasonable accommodation may include things like getting written instructions instead of verbal (because of cognitive dysfunction,) a stool for tasks that are generally done standing, or moving the workspace to a quieter location.

Allowing you necessary sick time is part of reasonable accommodation, but only the point that you can still perform the essential functions of the job.

State Law

Your state may have laws that further protect you from penalties related to disability. The Job Accommodation Network has provided a directory of state agencies that enforce these laws. It's a good page to bookmark in case you ever need to contact them for information:

Employer Policies

Make sure you know what policies your employer has in place regarding sick leave – especially if the company isn't covered by the FMLA and ADA.

If your workplace doesn't have an employee manual or written policy, you may want to ask for something in writing.

More Resources

Here's more information on the FMLA and ADA:

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