Can I Be Fired for Sick Days Due to Fibromyalgia and ME/CFS?

Question:

I've missed a lot of work due to fibromyalgia and chronic fatigue syndrome. Can I be fired for missing too many days even though my employer knows I'm chronically ill?

Answer:

In the U.S., you have several laws protecting your ability to keep working in spite of chronic illness. The Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are federal laws, so they apply across the country. Individual state laws may apply, as well. You should also know what, if any, policies your employer has regarding excessive sick time and disciplinary action.

Let's look at the specific protection you have.

The FMLA

Even though it's a federal law, the FMLA only covers certain businesses. You and your workplace are covered if all three of these obligations are satisfied:

• You've worked there for at least a year
• You've put in at least 1,250 hours in the past year
• Your employer has 50 or more employers within a 75-mile radius

In addition to prolonged leaves of absence, such as maternity leave, the FMLA allows you to take what's called intermittent leave for a serious health problem. That's what your sporadic sick days would fall under, as long as they're related to your chronic condition(s).

Is your chronic condition legally considered "serious"? According to the Department of Labor, it only is IF:

• It requires hospitalization
• It requires long-term care
• If it requires continuing treatment by a healthcare provider

Your employer is required to allow you up to 12 total weeks a year of leave, which averages out to five missed days per month. However, the company isn't required to pay you for any of this (beyond what sick time you may have.) That 12 weeks is your total leave, not just intermittent, so if you take eight weeks maternity leave, that only leaves you four weeks (20 intermittent days) for the rest of the year.

To qualify for intermittent leave, you need to provide medical certification of your illness. You can't be disciplined in any way for taking leave under the FMLA.

This doesn't mean, though, that continued regular absences won't impact your employment. If your boss determines that the days you miss interfere with your ability to do your job, you can be transferred to an equivalent job.

What's considered equivalent?

• It must have at least the same pay and benefits as your current position
• It can't be less desirable than your current position

That's only if it's possible for the company to do so, though. If not, you could lose your job.

What happens once you're out of FMLA-guaranteed leave?

• If you don't qualify as disabled under the ADA, you can be disciplined or fired for calling in sick. (State laws may offer you more protection, though.)
• If you do qualify as disabled under the ADA and certain other conditions are met, you can't be disciplined or fired for calling in sick. Read on to learn about those other conditions.

The ADA

Are you legally disabled? Yes, IF:

• You have a physical or mental condition that substantially limits a major life activity (i.e., walking, talking, learning.)
• Contrary to popular belief, you do not have to qualify for Social Security Disability Income to be considered legally disabled.

What other conditions need to be met in order for your job to be safe?

• You must be able to perform the essential functions of your job with reasonable accommodation.
• The business must have at least 15 employees in order to be bound by the ADA's requirement of reasonable accommodation.

For example, Ann works as a server in a large restaurant. The restaurant policy says she has to carry everything by hand instead of on a tray. She develops carpal tunnel disorder and can no longer grip multiple plates or glasses in one hand. Does that mean she can't keep her job? 

In this case, the manager can accommodate her condition by allowing Ann to use small trays, giving her extra breaks to rest and stretch her arms, and changing her shifts so she doesn't work on back-to-back days. Things like that are generally considered reasonable accommodations.

However, if Ann finds she still can't carry food to a table on a small tray, then it may be that she could legally be fired because of her disability.

For fibromyalgia and chronic fatigue syndrome, reasonable accommodation may include things like:

• Getting written instructions instead of verbal (because of cognitive dysfunction)
• A stool for tasks that are generally done standing
• Moving the workspace to a quieter location (if one is available)
• Offering a flexible schedule
• Offering a work-from-home option

Remember, though, that these things have to be reasonable for your employer. For example, Ann can't wait tables from home, and if the CEO is the only one in the building with an office, he/she doesn't need to give it to you or build you a new one.

Allowing you necessary sick time is part of reasonable accommodation, but you should still be able to perform the essential functions of the job.

State Law

Your state may have laws that further protect you from penalties related to disability. The Job Accommodation Network has provided a directory of state agencies that enforce these laws. It's a good page to bookmark in case you ever need to contact them for information:

• State Fair Employment Practice Agencies

Employer Policies

Make sure you know what policies your employer has in place regarding sick leave, especially if the company isn't covered by the FMLA and ADA.

If your workplace doesn't have an employee manual or written policy, you may want to ask for something in writing.

More Resources

Here's more information on the FMLA and ADA:

• Family Medical Leave Act
• Americans with Disabilities Act