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Is it legit to sue a company for calling you in only to cancel based on your cold sore condition I worked 2 days when it start.

Brooklyn, NY |

I had an out break that started off light then it spread to my whole lip swollen and I was working in the sun still giving customers service and then a co worker distracted me on the job to make fun of my condition. I was treated in the hospital and given a 2day notice to excuse me from work & now that my condition is better I showed up for work and they sent me home telling me I'm not healed from my condition and now I'm missing hours and my pay check is coming up short. I don't know when my condition might completely heal but I'm not letting it stop me. Is this a case of discrimination because I took the 2 days the Dr. suggested and now the company is acting like I can't work. I believe the co worker I wrote up is still working there and I guess they are keeping me away.

Attorney Answers 5


I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

This is an interesting question and has a complicated answer. There are two laws that might be helpful to you. First, you may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) 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. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour. Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA):

Second, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) might help you. The ADA protects people with disabilities as well as people who are regarded as having disabilities. While cold sores probably do not meet the definition of "disability" under the law, it may be that your employer considers you as having a disability. Also, the ADA protects people with facial disfigurements from discrimination.

The ADA applies to employers with at least 15 employees. To be eligible for the protection of the ADA, the employee or applicant must have a disability as defined by the ADA. This definition is “a physical or mental impairment that substantially limits one or more major life activities.” The impairment must be permanent or of long duration, such as one year. The definition includes being regarded as having a disability or having a disfigurement.

If these requirements are met, the employer may be required to provide reasonable accommodation. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable the employee to do the main functions of the job, allowing extra time off work for things related to the disability, and more. For applicants, the employer may need to provide reasonable accommodation in the form of extra time for qualification tests, better lighting, or any other modification that enables the applicant to apply.

Also, the employer may not treat an employee or applicant differently from other employees because of disability. For example, the employer may not refuse to hire or promote an individual, deny training or otherwise limit job opportunities, and the employer may not fire a person because of disability.

Please look at my Avvo guide on the ADA:

Employment law is complicated and fact-specific. You may wish to consult with an experienced plaintiffs employment lawyer. You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site.

*** 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. ***

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Honestly based on your facts, I would have difficulty in stating that I believe you have a claim under either FMLA or ADA.

Herbert Tan, Esq.

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Member of National Employment Lawyers Association (NELA)

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If your cold sore is still open and oozing, then your employer has the right to send you home to avoid the possibility that you may spread the virus at work. If your sore is no longer contagious, then you will need a note from your doctor stating that to present to your employer so you can return to work. If you believe you are being discriminated against because of your medical condition, you may have a claim for disability discrimination under the Americans with Disabilities Act and the New York Human Rights Law, and you should consult with an employment attorney.

The information provided above is for general purposes only. It does not constitute legal advice or create an attorney-client relationship.

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If you have only worked 2 days for the company total, FMLA will not be a valid claim.

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 (!/WhiteRoseMarks) or Facebook ( if you have follow up questions as we do not monitor questions after providing an initial answer.

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The employer should engage with you in an interactive process to determine whether a disability accommodation is appropriate. You should contact an employment lawyer.

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