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LawGirl, Lawyer
Category: Employment Law
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Experience:  I have practiced employment law.
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I work for a daycare and we are required by law to have a set

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I work for a daycare and we are required by law to have a set number of teachers in a classroom for a set number of children. I do understand that it is important for me to be at work.

With that said I have a question regarding attendance, sick time, and possible termination.

I am a single mother with 3 children (ages 11, 6, and 2). My fiance is living and working in another state so he is unable to watch the children. The father of the older 2 boys refuses to take time off work to stay with them when they are sick. My parents are both elderly adn my father has Parkinsons Disease so he has a weakened immune system. My parents will generally keep the older 2 boys if they arent "too sick", but the 2 year old is too much for them to handle for more than a few hours at a time. I do leave my sick children with them when they are willing to watch them for me so that I can go to work.
I simply do not have many options when my children are sick other than to stay home with them myself.

There have been many times I have taken my children to work when they have been sick and left them in the office. I have worked out half day scenarios with my parents where I will work a half day. I have left my sick children at their school for 4 hours at a time because my employer will not allow me to leave to go get them. I have gone to work myself when I have been sick with high temps and well as fly symptoms. I have given up scheduled days off because there have been other people who have called in sick to work. When I make dr appointments I always ask my employer what time of day works best for them and schedule for those times. I have even used walk in clinics as opposed to my regular family doctor if it works better for the scheduling for my job.

Earlier this week my 2 year old was very sick. I went to work, taking him to daycare that I work at, and told the boss that I needed to take him to the doctor some time that day and was told sorry, but I couldnt leave that day. Thsi would have been an extra half hour at my lunch at the most. He had a 102 temp, croupy cough, wheezing when breathing. It was very obvious he needed to be seen by a doctor. I made a good faith effort to go to work, asking for an hour or so off to take him to the doctor.
I told the boss that I needed to take him to the doctor and would do it at lunch if needed and would possibly be a little late.
I was then allowed to leave provided I took him to the walk in clinic, not his doctor, which I did.
THe doctor we saw diagnosed him with bronchitis and whooping cough, gave him an anitbiotic and told me to keep him home the rest of that day and the next day. I called my boss and told her. She told me that was too bad but she didnt have anyone to cover me so I had to go back to work.

I did return to work and stuck my 2 year old back in his class room.
I called my parents when I returned to work to ask if they could watch him the next day and they said no.
I informed my boss of this immediately and was told I had to be at work the next day. I said that if he still had a 102 fever I would be staying home with him.

I called my boss later that evenign and said I would be staying home with my sick child as he was still running a temp even after Tylenol and antibiotic.
I was given attitude but told "Fine."

The day I stayed home with my child, my boss as well as the 2nd in charge boss proceeded to call me and text message me a combined total of 7 times just to see how my child was doing. I even saw the boss drive by my house on her lunch hour!
Late that evening, they called and messaged me again.
I was told that another employee was sick and staying home so I HAD to be at work. I replied that I was planning on it as my child's temp had subsided by that point. I was then told that it isnt an option to stay home.
I did return the next day but if he had still been running a high temp and having breathing issues I would have stayed home with him again.

The only policy about sick time we have at work is that if you are gone for 2 consecutive days you need a doctors note. That is only enforced with certain people, though.
I did get a note from the doctor stating my child was to stay home and gave it to my boss after making a copy of it.
We are allowed 5 days per year off with pay to be used however we want. However, if you are absent you are forced to take one of the paid days. These days recycle in January and I have used all my 5 paid days at this point in the year.

Would a situation with me staying home be a reason to fire me? I worry about that because I am teh sole source of income for my home!
But at the same time I absolutely will not take my child to school/daycare when they are as sick as I described above. Not to mention the fact that the daycare is legally required to disallow their attendance when they are that sick.
If I were to be terminated would I have any recourse, or would I be denied unemployment?

LawGirl :

Thank you for your question. Although I am an attorney, I cannot represent you. However, I will give you the most thorough information. Although it is unfortunate, your employer may terminate you under these circumstances. Although unfair, it sounds like your employer is relatively small. In which case, they are not required to provide FMLA leave or provide for provisions in this situation. Given the hardship that occurs to your employer (given the size of the staff) when you are absent they can terminate for this. This is not illegal or discriminatory, so you would not likely have recourse unless they have a policy allowing for this conduct but are choosing not to properly enforce that policy where you are concerned. To the extent that you are terminated, you may file claim for unemployment. To the extent that your employer attempts to argue that you are not entitled to unemployment because your actions resulted in your termination, you can argue that as a single mother you had no other options and that your employer acted unreasonably. The decision as to whether to award unemployment would then be left up to the unemployment authorities depending on the information they obtained from both parties to the claim.

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