December 17, 2001
FIRING EMPLOYEES FOR EXCESSIVE SICK DAYS
By: Kevin E. McCarthy, Principal Analyst
You asked whether state law bars an employer from terminating an employee who takes an excessive number of sick days.
State law does not directly address this issue. Many employers have policies that specify the number of paid sick days that an employee can take. Whether an employer can terminate an employee who takes additional sick days primarily depends on whether the employee is covered by a contract or not. Sick leave policies are generally not legally enforceable for employees not covered by a contract. An employer can fire such employees at will, subject to certain statutory and constitutional protections discussed below. For employees covered by a union or other contract, the contract will normally specify when and how the employer can sanction an employee who takes an excessive number of sick days.
Two state laws, and two related federal laws, are relevant to this issue. The state Family and Medical Leave Act (FMLA) and its federal counterpart require certain employers to offer their employees leave to care for themselves or sick family members. The employer does not have to provide paid leave. State and federal law also bar employers from discriminating on the basis of disability. In addition, a policy of a
governmental agency terminating disabled employees for taking an excessive number of sick days could be challenged by a person with disabilities as violating the Equal Protection clauses of the state and U.S. constitutions.
In addition to these laws of general applicability, Connecticut has laws governing the termination of specific types of workers, such as teachers under CGS § 10-151. It also has specific provisions regarding the termination of pregnant employees (CGS § 46a-60).
TERMINATION OF AT-WILL EMPLOYEES
In Connecticut and most other states, employees without an explicit contract or statutory protection are subject to the common law rule that they can be terminated "at-will". "At-will employment" means that an employer may discharge an employee for any or no reason without incurring any liability to the employee. As discussed in OLR memo 2001-R-0428, the law allows an at-will employee to sue for unlawful termination under two circumstances. One is when the discharge "contravenes a clear mandate of public policy" (Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474 (1980)). Examples of such cases are when an employer fires an employee for filing a workers' compensation claim or exercising constitutionally protected rights. The other circumstance is when an employer agreed, either by words, action, or conduct, to not terminate the employee without just cause (D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 212 n.2 (1987)). In such cases, the burden of proof is on the employee.
EMPLOYEES COVERED BY CONTRACTS
Contracts normally specify the number of paid sick days provided to employees and often contain provisions addressing unexcused absences and the sanctions the employer can impose for them. Often, the sanctions are progressive, ranging from an oral warning to termination, depending on the circumstances. If a unionized employee believes that the employer has not complied with the contract, he can file a grievance. An employer's failure to discuss a grievance with the employee's representative is an unfair labor practice, which is subject to a variety of sanctions (CGS §§ 31-105 and 31-107).
In discharge cases, the burden of proof is generally on the employer, who must show just cause under the contract. The grievance can be submitted to arbitration. The arbitrator may uphold the discharge or can impose a less severe sanction. If the employer has violated the contract, the arbitrator may award back pay and order the restoration of benefits, among other things.
FAMILY AND MEDICAL LEAVE LAWS
The state FMLA requires most private sector employers with 75 or more employees to provide unpaid leaves to their employees under specified circumstances. Among these circumstances is if the employee has a “serious health condition” or needs to care for a family member with such a condition. A serious health condition is an illness, injury, impairment, or physical or mental condition that requires (1) inpatient care in a hospital or certain other health care facilities or (2) continuing treatment, including outpatient treatment, by a doctor or other health care provider. Eligible employees are entitled to a total of 16 weeks of leave during any 24-month period. This law does not apply to municipal employees and public and private school employees (CGS § 31-51kk et seq.). A similar law (CGS § 5-248a) applies to state employees, who are eligible for up to 24 weeks of unpaid leave during any two-year period.
The federal FMLA has similar provisions, and provides for a leave of up to 12 weeks leave in any 12-month period. The federal law applies to all private employers with more than 50 employees. It also applies to public sector employers, so long as 50 employees work within 75 miles of the worksite of the employee seeking to take leave. While an eligible employee can take a leave under federal or state law, the laws do not bar an employer from terminating an employee who does not do so for taking an excessive number of sick days. However, the employer would have to show that it took appropriate steps to inform the employee of his right to take leave under the law.
DISCRIMINATION ON THE BASIS OF DISABILITY
State law bars employers from discharging or discriminating against employees on the basis of disabilities. Employers include private and public sector entities that employ three or more persons (CGS § 46a-51). Disabilities include physical disabilities, past or present mental disorders, mental retardation, or learning disability. The provision does not apply in the case of a bone fide occupational qualification or need (CGS § 46a-60). In some cases the law gives additional job protections to people with disabilities, including those who use more than their allotted sick time. The Commission on Human Rights and Opportunities has a Webpage, http://www.state.ct.us/chro/metapages/legalprot/lp-emplo.htm, that describes how a person can file a compliant regarding discrimination in employment.
The federal Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with physical or mental disabilities. The law applies to private and public sector employees with 15 or more employees. Under ADA, a disability is is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. The U.S. Department of Justice describes “reasonable accomodation” as any change or adjustment to a job, the work environment, or the way things usually are done that would allow a person to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace. It gives providing someone with time off to seek treatment for a disability as an example of a reasonable accommodation. On the other hand, an employer is not required to (1) eliminate an essential function of a position in order to accommodate the disabled employee or (2) provide an accommodation that is unduly burdensome. A U.S. Equal Employment Opportunity Commission website, http://www.eeoc.gov/docs/fmlaada.html, describes the ADA and federal FMLA provisions in greater detail.
The state constitution entitles people to equal protection of the law and bars discrimination on the basis of physical or mental disability in their exercise of civil or political rights (Conn. Const. Art. I., § 20, as amended). As a rule, these provisions only apply to actions by governmental entities such as the state or municipalities. State v. Haselman 33 Conn. App. 242 (1993) cert. denied. 228 Conn. 921 discusses what constitutes a physical disability. Because disability is a suspect classification under the state constitution, an allegation that an public sector employer has discriminated on the basis of disability would be subject to strict judicial scrutiny. This means that, if the court found that discrimination had occurred, the defendant would have to show a compelling state interest that justifies and necessitates the employment practice.
The U.S. constitution bars states from denying people within their respective jurisdictions equal protection of the laws (U.S. Const. amend. XIV, sec. 1). Because disability is not a suspect classification under the U.S. constitution, discrimination on the basis of disability would be subject to a rational-basis analysis. As a result, the defendant would only have to show that the practice bears a reasonable relationship to the attainment of a legitimate government purpose.
In addition to these provisions, an employer cannot enforce leave policies in a way that is discriminatory against employees in legally protected groups. For example, it is unlawful to strictly enforce such policies against minority or female employees but have a more relaxed standard for non-minorities or males.