Can you get fired for asking for time off? Can an employer punish you for sick leave?

People usually ask:

• can you be fired for using PTO?
• what happens if you have negative PTO?
• can you get fired while on PTO?

Let’s find the answers

Employees have certain rights to leaves of absence from work. When they are entitled to time off, the employer cannot punish them for taking it. When employers do punish employees for legally protected activities like taking time off that they are entitled to, that is known as retaliation, and there are a number of laws, both on federal and California state levels, protecting employees from retaliation. For many employees, it can be difficult to determine if an employment action taken by their employer is considered unlawful retaliation, so this article will shed some light on a few different kinds of retaliation and how they can apply to situations involving leaves of absence. The protections described apply to California employees, although some of the same protections are afforded federally.

• They verbally abuse you
• They spread rumors
• They fire you

Let’s start from the top of the list.

1. They verbally abuse you

   
   One way employers might retaliate against you is by physically or verbally abusing you after you take time off. For many, hopefully, it is difficult to imagine a boss treating employees that way, but for others, it is all too familiar. To help paint a clearer picture of what this kind of situation might look like for those who are unsure, let’s look at an example:
   Hayden is a construction worker who has been working with the same employer for two years in Southern California. He has not taken any time off before, but when he gets the stomach flu, he decides to cash in two of the sick days that he has accrued. He gives proper notice to his employer and does not think too much about work while he recovers, although he later learns that one of his coworkers screwed up something that Hayden would have been doing had he been there and the mistake was costly for their employer. When Hayden does return to work, he notices that his boss, Darryl, is harsher with him than normal. Over the next few weeks, whenever Darryl sees Hayden, he insults him or calls him a name, like “pansy.” Many of the insults are related to the idea of Hayden being weak, and Darryl refers to his flu in tones suggesting he does not believe Hayden was really sick. Having provided a note from his doctor, Hayden is not sure what else he could have done to avoid the situation he is now in. He no longer enjoys going to work because he is constantly worried his boss will be around making cruel comments and encouraging his coworkers to be similarly hostile.
   In this situation, Hayden took a sick leave he had earned and was punished for it in the way of verbal abuse. Darryl should not be acting this way towards his employee and could be liable for unlawful retaliation.

2. They spread rumors

   
   Maybe the last time you thought about rumors was in high school, back when for a lot of students, alleged scandals about delinquency or sexual activity were the nail in the coffin to a punishing social life. Hopefully, rumors have been less of a problem since then, but if your employer still has the instincts of the stereotypical high school bully, then you may end up suffering once more at the spread of vindictive gossip. One way some employers might retaliate against you if they are angry about you taking time off is by spreading rumors to turn your coworkers against you. Let’s take a look at an example scenario:
   “Garfield works as a masseuse at a resort in Northern California. One day, he is contacted by an organization he once signed up for that matches people to sick children who need bone marrow transplants. They discovered that he was a match for someone in San Diego. Excited at the prospect of saving a child’s life, Garfield requests time off from work to donate bone marrow. The organization recommends that he take as many days as he can so he can recover as much as possible before returning to work, so Garfield checks state law and asks for the maximum required five days off. When Garfield comes back to work after his leave, he notices that his coworkers are treating him differently. Eventually, he asks someone what’s going on and discovers that someone has been telling everyone at work that his leave of absence was to interview for other jobs because he didn’t like his coworkers. Shocked, Garfield asks around and eventually figures out that the person who started the rumor was his boss.”
   In this situation, it is possible that Garfield’s boss is spreading this rumor because he is upset about Garfield taking time off. If an easier resolution cannot be found, Garfield may end up resorting to a lawsuit against his employer for retaliation.

3. They fire you

   
   Perhaps one of the clearest forms of retaliation, firing an employee for taking protected time off is also often one of the most detrimental actions an employer can take to punish an employee. Let’s look at how a scenario like this might play out:
   “Greta has been working part-time as a legal assistant at a law office in Los Angeles with nine other employees for just a few months. She was pregnant when she was hired, but was not yet showing. When she started showing up, her employer did not seem very happy. At Greta’s last doctor’s appointment, she was told she needed to be on bed rest for the rest of her pregnancy due to some complications. Greta follows the proper protocol in informing her employer of her need to take pregnancy disability leave and providing the required documentation from her doctor. She estimates that she will be gone for about four months, about two months before the birth and about two months post-partum. Her employer, Greta, is upset about this and tells her she no longer has a job with him. He rants at her about trying to trick him and not telling him she was pregnant when he hired her. She leaves, seven months pregnant, and finds an employment attorney to discuss her options.”
   Greta’s employer, under California law, must provide her up to four months of pregnancy disability leave since he has more than 4 employees; it does not matter that she is a recent hire or that she works only part-time. He cannot legally fire her for requesting this time off, and because he fires her immediately after her request and rants at her about pregnancy, Greta could be very successful in suing him for wrongful termination.

If any of these situations sound familiar to you or if you believe you have been retaliated against in some other way for taking time off or for other legally protected activity, contact a labor lawyer. With their help, you may be able to get restitution.