Can an Employer Fire You if You Call in Sick After You Give Your Two Weeks Resignation?

Employment-At-Will Doctrine

Based on the employment-at-will doctrine, which is a practice that most private sector employers follow, your employer can terminate the working relationship at any time. The company doesn't need a reason, such as you calling in sick after you've given your two-week notice that you're leaving. Notice or not, your employer can sever the ties at any time, for any reason or for no reason, with or without notice. The only time an employer can't terminate you based on the at-will doctrine is when you have an employment agreement, when you're covered by a labor union contract or if you exercise your rights under public policy.

Possible FMLA Violations

There exists a possibility that your employer may be violating the Family and Medical Leave Act, or FMLA, if you were previously approved for intermittent leave and the day you called in sick was a FMLA-related absence. The FMLA provides up to 12 weeks of unpaid, job-protected leave for a serious health condition of your own or a family member. Some FMLA-eligible workers take intermittent leave for conditions that require brief, periodic absences, such as taking one day off each week for radiation therapy. If you called in sick as part of your intermittent leave that's already approved under FMLA, then your employer may be violating the FMLA law if you get fired for using a sick day that's part of your intermittent leave entitlement. Even if you have only two weeks or less to go until you leave the company, under FMLA your job is still protected.

Pay in Lieu of Notice

If you call in sick and your employer says, "Let's just go ahead and end the employment relationship now," she may be suggesting what's called "pay in lieu of notice." This means the employer accepts your resignation but may not see the point in continuing the relationship beyond the date on which you gave notice. That said, it's odd that the pay-in-lieu-of notice occurs after you call in sick and not on the date you tendered your resignation. For clarification, confirm that your employer accepted your resignation but that the company will pay you for the remainder of your notice period.

Clarification

Ask your employer to clarify whether your employment record will reflect resignation or termination. You'll need this information anyway so that you can accurately state to future employers what they'll find when they call your previous employer for verification as part of a background check. Also, if your resignation wasn't accepted by the employer and the company insists that you were instead terminated, you could be eligible for unemployment benefits. But check your state labor and industrial relations laws for specific guidance on your eligibility for benefits -- it's difficult to justify eligibility for people who quit their jobs, but if you were terminated for reasons other than gross misconduct, you could receive weekly benefits until you find your next job.