Can You Fire an Employee for Absenteeism Due to Illness?

You can fire an employee for absenteeism due to illness, but only after you’ve honored their rights under the Family and Medical Leave Act and the Americans with Disabilities Act, and only if the absences you’re relying on aren’t themselves protected. Employers rarely lose these cases because the underlying decision was wrong. They lose because they moved too fast, counted protected time against the employee, or skipped a step the law required.

What the FMLA Takes Off the Table

The FMLA gives eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a serious health condition that prevents them from doing their job. Eligibility has three parts, and all three must be met:

The employee has worked for you at least 12 months, though not necessarily consecutively.
The employee logged at least 1,250 hours in the 12 months before leave starts.
You employ 50 or more employees within 75 miles of the employee’s worksite.¹

If any one of those fails, the FMLA doesn’t apply. The employee may still be protected by the ADA or state law, but the 12-week federal shield isn’t in play.

When the FMLA does apply, federal law makes it unlawful to interfere with the exercise of those rights or to discharge or discriminate against someone for using or requesting leave.² You also cannot count FMLA-protected absences as negative factors in discipline, promotions, or termination decisions.³

The Intermittent Leave Trap

Illness rarely happens in a single tidy block. An employee with migraines, Crohn’s disease, or an ongoing cancer treatment may miss a day here and a half-day there for months. The FMLA allows leave to be taken intermittently when medically necessary for a serious health condition. Workers’ compensation leave and short-term disability can run concurrently with FMLA, so the 12-week clock may already be ticking while another benefit pays the wages.⁴

This is where “excessive absences” and federal law collide most often. What looks to a supervisor like a chronic attendance problem may be fully protected FMLA leave. Before a single one of those days counts against the employee, you need to know whether it qualifies.

What the ADA Adds After FMLA

The ADA applies to employers with 15 or more employees and prohibits discrimination against qualified individuals with disabilities.⁵ A person has a disability if they have a physical or mental impairment that substantially limits a major life activity, have a history of one, or are perceived as having one.⁶ The 2008 Amendments Act broadened that definition, so most serious illnesses fall within it.⁷

You must provide reasonable accommodations to qualified employees with disabilities unless doing so would cause undue hardship.⁸ For an employee with illness-related absences, common accommodations include modified schedules, reassignment to a vacant position, and additional unpaid leave beyond whatever FMLA entitlement has been used. That last one surprises employers: the ADA can require you to extend leave even after the 12 FMLA weeks are gone, unless you can prove undue hardship.⁹

The Interactive Process

Before denying an accommodation or terminating an employee with a disability, you have to engage in a good-faith interactive process: a genuine conversation about the employee’s limitations, what the job requires, and what adjustments might work. Skipping it is itself a violation that can support a discrimination claim, even in cases where no accommodation would have ultimately worked.⁹

Undue Hardship Is a High Bar

Undue hardship means significant difficulty or expense relative to your specific business. Inconvenience isn’t enough. The analysis looks at the cost of the accommodation, your overall financial resources, the number of employees, the type of operation, and the impact on business operations.⁹ A large corporation will have a much harder time meeting this standard than a 20-person business where one missing employee creates a genuine operational gap.

Attendance Policies That Hold Up

Many employers rely on point-based or no-fault attendance systems that assess points for every absence regardless of reason. These are legal, but they become a problem the moment they touch FMLA-protected time. The Department of Labor has stated that no-fault attendance policies cannot assess points for absences taken for any FMLA-qualifying reason.¹⁰ You can freeze the points an employee had accumulated before leave, but you can’t add new ones for the protected days.

Whatever policy you use, apply it uniformly. When one employee gets disciplined for absences that another supervisor overlooks in a similarly situated worker, you’ve built the evidence of discriminatory treatment for the plaintiff. Put your attendance expectations in writing, define what counts as excessive, describe your progressive discipline steps, and hold every supervisor to the same standard.

Documentation is what makes a termination defensible. Record every absence with the date and stated reason. Keep every medical certification. Write down every conversation you have with the employee about their absences, their accommodation requests, and the interactive process. When the decision eventually comes, you’ll need to show that each absence used against the employee was truly unprotected and that other employees were held to the same measure.

When Termination Becomes Defensible

Once you’ve allowed the employee to use all available FMLA leave, engaged in the ADA interactive process, and worked through every reasonable accommodation, termination may be on the table. The analysis at that point is more specific than most employers realize.

Essential Job Functions

The central question is whether the employee can perform the essential functions of the job with or without reasonable accommodation. The EEOC weighs several factors: whether the position exists specifically to perform that duty, how many other employees are available to share the work, the level of expertise required, the actual experience of others in the role, and the time spent on the task.⁸ Written job descriptions created before hiring carry evidentiary weight, so keep them accurate.

Whether regular physical attendance is itself an essential function is one of the more contested questions in employment law. Most federal courts have said it is, at least for roles that require in-person work. The EEOC has argued the other way, treating attendance as a means of accomplishing job duties rather than a duty in itself. In practice, the answer depends on the job. A remote-capable desk position has weaker grounds than a production line seat or in-person patient care. Your argument stands or falls on whether you can articulate why this particular job cannot be done without reliable in-person attendance.

Once Protected Leave Runs Out

After 12 weeks of FMLA, the job-protection guarantee expires. The ADA has no fixed time limit. Additional unpaid leave beyond FMLA can be a required reasonable accommodation, and courts have generally rejected maximum-leave policies that terminate employees automatically after a set number of days. The right approach is case by case: can you hold the position open longer without undue hardship, or has the absence reached a point where the business genuinely cannot function without filling the role?⁹

An employee who cannot perform essential job functions even with reasonable accommodation is not a qualified individual with a disability under the ADA, and at that point termination is defensible. Before pulling the trigger, consider whether reassignment to a vacant position the employee can perform is feasible. The EEOC treats reassignment as an accommodation of last resort.⁹

Retaliation Claims That Sink Legitimate Firings

Even a legally sound termination can generate a retaliation claim depending on how it happens. This is where careful employers still lose.

Timing is the most visible risk. Firing someone shortly after they return from medical leave, request an accommodation, or file a complaint creates a strong inference of retaliation. Courts call this suspicious timing, and it’s often enough on its own to establish a causal link between the protected activity and the termination. A longer gap won’t save you either if other evidence points the wrong way: inconsistent explanations for the decision, statements by supervisors, or different treatment of similarly situated employees.¹¹

You can discipline or terminate employees for legitimate, non-retaliatory reasons even after they’ve taken protected leave. Taking FMLA leave doesn’t cure genuine performance problems or policy violations. But the stated reason has to hold up. If it’s “unexcused absences” and half those absences were FMLA-protected, the explanation falls apart.¹¹

Workers’ Compensation Retaliation

If the illness stems from a workplace injury and the employee has filed a workers’ compensation claim, another layer of protection kicks in. Nearly every state prohibits retaliation against workers who file these claims, and remedies can include reinstatement, back pay, and in some states punitive damages or criminal liability. These claims are hard for employers to defend because juries tend to sympathize with an injured worker fired after seeking benefits. If any recent or open workers’ comp claim is in the picture, treat the retaliation risk as separate from your FMLA and ADA analysis, not folded into it.

Constructive Discharge

Retaliation doesn’t require a formal firing. If you make the work environment so intolerable after an employee returns from medical leave that they feel forced to quit, that can be a constructive discharge, legally equivalent to termination. Punitive schedule changes, stripped responsibilities, social isolation, and heightened scrutiny that other employees don’t face all create this risk.

State and Local Protections

Federal law is the floor. Many states and cities require paid sick leave (typically 40 to 56 hours annually for full-time workers), and some define disability more broadly than the ADA does. Before terminating any employee for attendance, confirm you’ve accounted for every applicable federal, state, and local protection, not just the ones on the federal side.

1
eCFR. 29 CFR 825.110 – Eligible Employee
2
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts
3
U.S. Department of Labor. Fact Sheet 77B – Protection for Individuals under the FMLA
4
U.S. Department of Labor. Fact Sheet 28P – Taking Leave When You or Your Family Member Has a Serious Health Condition under the FMLA
5
U.S. Equal Employment Opportunity Commission. Disabilities Act Expands to Cover Employers with 15 or More Workers
6
ADA.gov. Introduction to the Americans with Disabilities Act
7
U.S. Equal Employment Opportunity Commission. The ADA – Your Employment Rights as an Individual with a Disability
8
U.S. Equal Employment Opportunity Commission. The ADA – Your Responsibilities as an Employer
9
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA
10
U.S. Department of Labor. WHD Opinion Letter FMLA2018-1-A
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U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Retaliation and Related Issues