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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20228
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I've been sick since Dec. 29th 2015, when I saw the Dr. I

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I've been sick since Dec. 29th 2015, when I saw the Dr. I was told to take 2 days off from work and rest. I called my job 2hrs before my shift started (per company policy), spoke with the dispatcher on duty at the time, told her I was sick, and would be back to work in 2 days. I went back to work on the 4th of january , turned in a copy of my Dr's note, Hr lady said "your ok" and I worked the whole week. Still getting sicker I went to the Dr. again, this time he said "Either take 3 days off from work now or be prepared to take 2 weeks off later." So, I again followed my companies policy and called in 2 hours before my shift to inform them that I was going to be out for 3 days and when I would return. Today I returned to work, turned in a copy of the Dr's note, was told all is fine, so I went and worked my shift. At the end of the day, the supervisor called me into her office for "coaching", as she called it. Then she proceeded to tell me that because I only had 1 day of sick leave available when I got sick, I now have 4 unexcused absences. If you don't get paid for sick time, then that counts as unexcused absences. She then handed me a copy of the attendance and absenteeism policy.
This states: If an absence is due to an illness or injury, you may be required to provide appropriate medical certifacion to support the absence and/or fitness to return to work. Failure to provide proper notification or certification of absence or lateness, as well as unexcused absence, late arrivals or early departures from work may result in disciplinary action, up to and including termination.
Absenteeism: Absenteeism is defined as arriving for work thirty (30) minutes late, leaving work early or calling off for any reason. Employees are asked to call dispatch at least four (4) hours prior to the start of their shift, but are required to call dispatch two (2) hours prior to the start of their shift. Employees who are absent for any reason as defined above within any 12 month period will be subject to disciplines as outlined below. 1-3 no action, 4th verbal warning (documented), 5th written warning, 6th 2nd written warning/suspension-probation, 7th termination.
How can they do this??? I followed all their rules and I have even worked sick. How can they say this is an unexcused absence when I took in a Dr's note, knew I would not be paid for being sick and paid 270.00 just to see the Dr. IS this legal??
Submitted: 1 year ago via Cornell Legal Info Institute.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.


Thank you for the information and your question. If they are not following their own policies and you ultimately are demoted or terminated, then you would likely have a wrongful termination case. However, there is something you can do right now that will wipe away any chance of those days being counted as unexcused (since you have no more sick leave). That is to apply for intermittent FMLA for the days you were off. FMLA is a Federal law that provides unpaid sick leave that is job protected (cannot be used to count against you for attendance purposes), that an employee can qualify for if their doctor will complete the certification that they have a serious medical condition (which includes absences of 3 days or more or a series of related absences.) You must though have worked full time for the employer for at least 12 months and they must have at least 50 employees. If you qualify, then you need to go to HR and tell them you want to apply for FMLA for the days you were sick. They really should have given you the paperwork after this last 3 day absence assuming that you meed the 12 month test and they are a large enough employer.

You can read more about FMLA by going to the following link:

Please feel free to ask for clarification if needed, however, I will be away from my office for the next few days but will respond as soon as I have access to a computer. If no clarification is needed, then if you could take a moment to leave a positive rating in the box above, I will receive credit for assisting you today. Thank you

Expert:  Marsha411JD replied 1 year ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 15th. For some reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit (paid by the Site) for our work, that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue,if needed. You can bookmark my page at:

Thank you.

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