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Can an employer deny a doctor's note for a week of call-in's, despite the employee having a contagious illness?

Rochester, NY |

My girlfriend has a highly contagious illness at the moment. Her doctor banned her from working/going to school until she is fully recovered. Her manager said that the store she works at has an attendance policy that doesn't consider doctor's orders as a valid reason to call in. This manager told her she was at risk of being fired, merely for following her doctor's orders. To me, it's highly unethical to expect sick employees to work when they're ill, medicated, and end up spreading their illness to other customers. Are there protections in place against a firing for a valid medical order to take a temporary leave of absence?

Attorney Answers 2


  1. Best answer

    This is going to come down to a few issues:

    1. Does your employer meet the requirements of FMLA, is so your girlfriend has FMLA leave available.
    2. Does your girlfriend's condition constitute a disability under State or Federal law? Speak to an employment attorney in your area to determine if this is the case.
    3. If the highly contagious condition is the flu, your girlfriend will probably be fired for taking 10 days despite the company's attendance policy.

    This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.


  2. Does the employer have 50 employees? And has she worked for the company full time (1250 hours) for at least a year? If so, she may have a right to leave under the Family and Medical Leave Act if her condition qualifies as a "serious health condition" and if it renders her unable to perform the essential functions of her job. The fact that the condition is contagious may or may not make a difference.

    You need to contact a local employment lawyer to discuss these issues, plus any other rights that she may have under state or local law. The facts in your question are insufficient to show whether she is protected by the FMLA.

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