Can an Employer Call You in for Questions When You Are on Sick Leave?

A bad cold or the flu won't activate your legal rights to sick leave under the Family and Medical Leave Act.
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Coughing, sneezing, or sweating your way through a fever can be uncomfortable or painful, making it difficult to concentrate at work. However, there’s no black-and-white answer as to whether your employer can call you into work even when you’re feeling sick. Sick leave isn’t a federally mandated right, except under specific circumstances established by the Family and Medical Leave Act. You could be protected, though. If being called in for questions when on sick leave seriously compromised your health, consider talking with a lawyer for additional counsel.

Paid Vs. Unpaid Leave

    Although some companies offer sick days specifically allocated for time when you’re not feeling well, other companies combine sick days, personal days and vacation days into a benefit called “PTO,” which can refer to “personal time off” or “paid time off.” These are paid days when you don’t have to be at work; however, most companies will require you to arrange these days ahead of time and seek employer permission first. The U.S. Department of Labor states that no federal mandate requires paid sick leave. If a work emergency arises, your employer might see fit to call you in for questions related to the problem, effectively canceling your sick day.

Family and Medical Leave Act

    Under some circumstances, you might qualify for unpaid sick leave that would protect your employment status even when you’re not there, according to the U.S. Department of Labor. The FMLA allows some employees to take up to 12 weeks of unpaid leave without threatening their employment status. Qualifying situations would include the birth or adoption of a child, caring for a family member who is sick or when an employee has a serious illness that prevents her from coming in to work. This protection only applies to workers at companies with at least 50 employees and to employees who have worked 1,250 hours within the past calendar year for that employer. Your employer might ask you to come in, but you cannot be penalized for not reporting to work while protected by the FMLA.

Reason for Sick Leave

    Because FMLA requires “serious illness” before taking effect, your employer could possibly still call you in for questions if you have a cold or the flu. Although you might be required to provide a doctor’s note to earn FMLA protection, your employer isn’t allowed to ask for health documentation that could reveal that you have a disability or serious health condition, according to the Legal Aid Society Employment Law Center. An overnight hospital stay or doctor-mandated bed rest during pregnancy are examples of conditions protected by FMLA. Otherwise, your sick leave might be at your employer's discretion.

Other Sickness Scenarios

    Nearly all states have at-will employment, meaning you could be fired at any time, for any reason, according to AOL Jobs. Montana is the only exception, according to the National Conference of State Legislators. Refusing to come into work when summoned, even if you’re sick, could get you fired. However, explaining the situation to your boss could help diffuse the situation. For example, if you’re a nurse in a maternity ward, explaining that you can’t come into work without threatening the health of newborns might sound like a logical explanation to your boss. See if you can get by with a phone call or email until you’re well enough to come in.

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