Many employees want to know whether their employer can fire an employee out sick.

Unfortunately, the answer is, “It depends.” And every case is different.

The law for disability discrimination in California is within the California Fair Employment and Housing Act and/or California Family Rights Act. Thus, we have to look at the Fair Employment and Housing Act and Family Rights Act to answer the question of whether an employer can fire an employee out sick.

Whether an employer can fire an employee out sick depends on the nature of the illness. In general, if an employee has a non-chronic illness of a short duration that does not have a long-term impact such as a cold or the flu, the employee will not be protected by California’s Fair Employment and Housing Act. Without protection by the Fair Employment and Housing Act, the employee can be terminated if out sick.

However, if the employee has a temporary disability that meets one of the definitions of disability contained in the Fair Employment and Housing Act, it may mean that the employee out sick may not be fired. And, of course, if the employee has a non-temporary disability that is covered by the Fair Employment and Housing Act, the employee out sick is protected and cannot be lawfully fired.

In addition, if the employee’s illness is a “serious health condition” as defined under the California Family Rights Act and if the employee is eligible for leave under that law, the individual may be entitled to a leave of up to 12 weeks in a 12-month period and have his or her job protected.

If you are unsure about your rights under the Fair Employment and Housing Act or the Family Rights Act, contact Strauss & Strauss for a free case evaluation.