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Absence with a doctor's note

Q: As an employee at-will, I had a doctor's note for a recent early leave from work. I was written up as being absent. I left work to go to the doctor's, where he said to go home, not back to work, and not go to work the next day. Is this legal? I've been with the company less than 6 months, and they told me that no matter what the reason, it's still not at work, so a doctor's note doesn’t matter. Can you help me to clarify this?

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A: There are a few pieces of information that I would need to verify before I could fully and completely answer your question. Without this information, I need to make a few assumptions.

I am assuming that you left early from work on the first day, missing a partial day of work because of your illness. I am also assuming you also missed the following work day based on your doctor’s recommendation and again based on an illness. If this is accurate, then what your employer did was likely legal but may not be ethical (assuming that you had been a reliable employee up until this point).

When you say “written up” I am not sure if you mean that you received some type of reprimand or discipline. Or did your employer simply record your time away from work as an absence? Your employer is permitted to count these instances as absences if you were not actively working at your job. A doctor’s note is helpful to explain the reason why you were not at work, but any time away from work would still be considered an absence even though it sounds like it was legitimate. If you were “written up” (i.e., reprimanded or disciplined) and this was the first incidence of you taking time off for an illness, I would agree your employer’s response was a bit harsh. However, I would need more information about your employment history to better assess your situation. Some questions include:
• Was this the first occurrence or have absences been a concern in your first six months of employment? If you have demonstrated a pattern of excessive absences and/or tardiness, I can better understand your employer’s response in this situation.
• Did you miss a critical day (i.e. a month end deadline) that caused disruption to your colleagues and the operations of your department? If you are consultant and you missed an important presentation to a client where you were scheduled to present the findings of an important project, then this is a bit different than missing a less critical day of work.
• Did you follow the appropriate call-in procedures for absences that may be required by your place of employment? If you neglected to call your direct supervisor and inform him/her of your needed time off, but instead you called a co-worker to pass on your message, I can better understand your employer’s response.

Many employers have guidelines for what is a reasonable number of absences within a certain time period. Most supervisors of new employees are carefully evaluating these employees to ensure that the newly hired employees are both reliable and productive.

There are employment laws which protect employees in some specific instances that may or may not be applicable to your situation. For example, the Americans with Disabilities Act (ADA) provides some protection to employees and forbids discrimination based on an employee’s disability. Based on the information that you presented, I am unable to definitively conclude whether or not your situation would fall under ADA.

Additionally, the Family and Medical Leave Act (FMLA) may offer some protection but based on your tenure (less than one year of service), you would likely not qualify for this benefit.

As an at-will employee, you are likely protected by many employment laws. However, these laws vary by industry, state and company size.


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