Can an employer fire you if you have a doctor's note for missing work, and have "sick days" that you can use?

Asked almost 5 years ago - Dallas, TX

My husband works for a large company and his FMLA is being denied because they are saying that he needed to be out for at least 4 days, and his doctor only had him stay out for 3 days. He was told that if is was denied (which is has been) it is grounds for termination, but he does have "sick days" that they aren't allowing to be used. Can we take legal action if he is fired?

Attorney answers (1)

  1. Gordon R. Leech

    Contributor Level 14

    Answered . The Family Medical Leave Act protects employees that are covered by this law when absences are for serious health conditions, as these conditions are defined by the act. A condition that disables an employee from work for more than three days is, by definition, a serious health condition for which absences due to his condition are protected. This is not the only way though to be found to have a serious health condition. Conditions that require ongoing treatment by a healthcare professional are also protected. I would assume that your husband's broken leg requires more than one visit to the doctor for treatment. It sounds like this may be serious enough to be protected under the law. The Department of Labor has a certification form for FMLA qualifying absences. If you visit its website www.dol.gov, you can find the FMLA certification form, take it to the doctor, and if the doctor certifies one of the several bases for protected leave, give it to the employer. If the employer terminate your husband's employment because of these absences, it will then be potentially liable for your husband's lost wages if he brings a claim.

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