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Can an employer terminate for having too many absences when you have mdeical notes for all your missed shifts?

San Bruno, CA |

I filied a eeoc charge of retaiation on feb 14th,2012 every since my employer has told me that i have 8 absences total from feb 2012- present. I told them i have asthma and allergies which at times causes me a sinus infections and or asthma flare ups. Now i'm told if i miss 8 or more absences in a year , work incomplete shifts or leave early due to illness or other emergencies it counts as an accesive absence and i could be terminated .when i asked is this policy in writing i was told it is in my union contract, when i read my contract and employee handbook it not did state accesive absences would lead to a termination. nor did it state how many absences you can miss in a year. If i was fired could i sue for wrongful termination? also what legal rights if any do i have?

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Attorney answers 3


There are laws in this country and state that offer some protections to persons with certain kinds of disabilities. Most of those laws are about protecting disabled workers who can do the job if the employer will just agree to some modest and workable changes in it. There are few laws that relieve the employee of the burden of showing up and doing the job.

It may be that you need to find work that you will be more inspired and engaged by -- so that you can attend more often and come closer to meeting an employer's legitimate needs and expectations. When it comes to employment, showing up and working is the irreducible minimum. Just about everything else is negotiable.

In any event, the employee handbook is not an exhaustive catalog of all of the kinds of conduct that can cause termination. But since you have a union contract, you may have specific rights in addition to those few and limited rights provided by statutes. Talk with your union rep immediately. Very likely there is an obligation to submit your dispute with your employer to the grievance process before you could pursue any legal process.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


There are various sources of POTENTIAL protection related to your medical status.

There is limited protection if your absences are caused by a serious medical condition as that is defined by law. You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have a serious medical condition as defined by the FMLA.

If your asthma is causing you to miss this much work, you probably have a serious medical condition as defined by law. If the other conditions are met, you may have strong protection.

Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

If the condition is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my Avvo guide on the ADA: and also on the differences between the ADA and California’s more generous FEHA:

Your asthma may also qualify as a disability under these laws. The California FEHA is more expansive (and only requires the employer to have 5 employees) and you are more likely to meet the definition of a person with a disability under the FEHA than under the ADA. However, if you filed a charge of disability discrimination with the EEOC, it has filed a claim on your behalf with the California Department of Fair Employment and Housing (dual filed). The DFEH enforces the FEHA.

Your union contract most likely contains a provision stating the employer cannot discipline an employee without just cause, or proper cause, or similar language. It may also contain a provision stating the employer must comply with the external law. You should immediately discuss this situation with your union, which may be able to help you. Note there are usually very short time limits for filing a grievance, so get to your union right away.

If your union cannot help you, you may be able to pursue a claim alleging a violation of the laws mentioned above. Actually, you can do this even if your union can help you. There are many, many considerations in such an action. The Avvo board is not really set up to handle the kind of detailed analysis that is needed in your situation. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute with can read everything written here.

Employment law is complicated and fact specific. To find a plaintiffs employment attorney, please go to the web site of the California Employment Lawyers Association (CELA) CELA is the largest and most influential bar association in the state for attorneys who represent working people. You can search for attorneys by practice area and location.

Best wishes!

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


First, I believe that your asthma would qualify as a medical disability and this is a path that certainly could be pursued. Perhaps, more importantly, which I don't believe other attorneys have addressed is that you state that you are in a Union. The way the process works is the Union enters into a contract with the company on your behalf. These contracts are very specific and normally well drafted. Your Union has a duty and obligation to step up to the plate and represent you in your best interests. The Union will have shop stewards for you to report to and grievance committees and expert attotrneys available to address your needs.

I hope this is helpful.

John N. Kitta
(510) 797-7990

Marilynn Mika Spencer

Marilynn Mika Spencer


Respectfully, Ms. McCall's and my responses DID discuss the union. More importantly, the summary provided in this answer of how unions work is not accurate. Unions have their primary obligation to the entire bargaining unit as a whole (a “bargaining unit” is the group of job classifications represented by the union), rather than to any particular individual in the bargaining unit. The union is NOT obligated to "step up to the and represent you in your best interests." Unions have the right to determine which cases to pursue or not pursue, usually based on resources. However, a union cannot make its decisions in a manner that is arbitrary, discriminatory, or in bad faith. The standard is much harder to meet than to meet a negligence standard. There is a six month statute of limitation (time limit) to file a claim against a union for breach of its duty of fair representation. Most local unions have very limited financial and staff resources, so they must pick and choose which cases to work on and how to do so. Very few local unions have their own labor attorneys. Some local unions are able to use attorneys provided by a higher union body, but not all. The attorneys are rarely used at the grievance level, and many unions do their own arbitrations, reserving any attorney resources for court work, which union officials cannot do. Unions always have to balance the need for more money (to hire more union reps, or to take more cases to arbitration, for example) with the bargaining unit’s unhappiness about higher dues. This is similar to our elected officials, who must always balance providing what their constituents want with the need to raise taxes. In short, as I said in my answer above, please take this situation to the union and hope it is able to help. And you can take individual legal action based on a statutory violation.



In fact my union was the first place i went but they are not helping me at all. My union sided with my store also i recieved a document asking me to sign to release my medical info which i will not do that is personal. I am in a hard situation right now. Im in fear of termination.

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