Can You Be Fired for Calling in Sick in California? Your Rights Explained

Getting sick is a part of life, but worrying about your job while you recover should not be. Many California workers wonder whether calling in sick can cost them their position, and the answer depends heavily on the circumstances. California generally provides some of the strongest workplace protections in the country, including paid sick leave and safeguards against retaliation. That said, these protections have limits, and understanding how they may apply to your situation is important. This article offers a general overview of your potential rights when you need to take time off because you or a family member is ill.

California’s Paid Sick Leave Law

California’s Healthy Workplaces, Healthy Families Act, codified at Labor Code section 245 and following, generally requires most employers to provide paid sick leave to employees. Under the amendment enacted by SB 616, effective January 1, 2024, covered employers must generally provide at least 40 hours or 5 days of paid sick leave per year, an increase from the previous 24 hours or 3 days.

The most common accrual method generally provides employees with 1 hour of paid sick leave for every 30 hours worked, though some employers may use alternative methods that comply with the law. Employees generally may use accrued sick leave for their own illness or a family member’s illness, for preventive care, or for certain safe-time reasons related to domestic violence, sexual assault, or stalking. Whether a specific use qualifies may depend on the facts of your situation.

Protection Against Retaliation

California law generally takes retaliation seriously. Labor Code section 246.5 generally prohibits employers from denying an employee the right to use accrued paid sick leave and from retaliating or discriminating against an employee for using, or requesting to use, paid sick leave. This may include actions such as termination, demotion, discipline, or other adverse treatment tied to protected sick-leave use.

In addition, Labor Code section 233, often called the “kin care” provision, generally allows employees to use a portion of their accrued sick leave to care for certain family members. Depending on the circumstances, an employer that punishes an employee for lawfully exercising these rights may be acting unlawfully. Every case is different, however, and outcomes generally depend on the specific facts.

When Calling In Sick Connects to Broader Leave Protections

Sometimes an illness or medical condition may qualify for protections beyond basic paid sick leave. These may include:

• The California Family Rights Act (CFRA), Government Code section 12945.2, which generally provides eligible employees of covered employers (generally those with 5 or more employees) up to 12 workweeks of job-protected leave for certain family and medical reasons.
• The federal Family and Medical Leave Act (FMLA), which generally provides eligible employees of covered employers (generally those with 50 or more employees) up to 12 weeks of job-protected leave.
• Disability-related protections under the Fair Employment and Housing Act (FEHA), Government Code section 12940, which may require employers to provide reasonable accommodation for a qualifying disability and generally prohibit disability discrimination.

Eligibility for these protections generally depends on factors such as the size of the employer, how long you have worked there, the number of hours you have worked, and the nature of your condition. Whether any of these laws apply to you may depend on the circumstances, so it may be worthwhile to have your situation reviewed.

What Is Not Automatically Protected

It is important to understand that not every absence is protected. California is generally an at-will employment state, which means that in many situations an employer may terminate an employee for legitimate, non-retaliatory reasons. Calling in sick does not, by itself, guarantee immunity from all discipline or termination.

For example, excessive unexcused absences that fall outside the scope of protected leave may not be protected, depending on the circumstances. An employer may also be permitted to enforce reasonable notice and documentation policies, provided those policies comply with the law and are not used as a pretext for retaliation. Because these distinctions can be complex, it may help to have the specific facts of your case evaluated by a qualified professional.

How to Protect Yourself and Take Action

If you believe you were disciplined or terminated for using or requesting sick leave, there are steps you may consider. Keeping records of your requests, absences, doctor’s notes, and any related communications may be helpful. When gathering such documentation, only rely on information that you lawfully possess. Do not access restricted company systems or obtain confidential, proprietary, privileged, or personal information that you are not authorized to possess.

Depending on the nature of the claim, different agencies and deadlines may apply. Sick-leave retaliation claims generally may be filed with the California Labor Commissioner (also known as the DLSE). FEHA-based claims, such as those involving disability discrimination or failure to accommodate, generally may be pursued through the California Civil Rights Department (CRD), formerly known as the DFEH, generally within 3 years from the date of the last unlawful act. Exceptions and different procedural requirements may apply, so acting promptly is generally advisable.

Frequently Asked Questions

To discuss your situation, you may reach us at (310) 956-4054 or contact us online. Because filing deadlines vary depending on the type of claim, consider seeking legal advice promptly.