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Can You Be Fired for Taking a Sick Day?

Nelson, Roxanne, BSN, RN

AJN The American Journal of Nursing: July 2018 - Volume 118 - Issue 7 - p 18–19
doi: 10.1097/01.NAJ.0000541426.51465.fb
AJN Reports

Know your rights and responsibilities when it comes to sick time.

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It makes sense that a nurse who is sick should not go to work. Yet a recent incident involving an Ohio nurse who had flu-like symptoms and was fired for calling in sick suggests institutions’ policies may not be based on such logical assumptions.

According to several local news reports, Theresa Puckett, PhD, RN, formerly worked as a per diem nurse on the inpatient psychiatric units at University Hospitals in Richmond Heights, Ohio. Although she had been vaccinated, she became ill with the flu after Christmas. She visited an urgent care clinic, where a physician prescribed oseltamivir (Tamiflu) and provided her with a note saying she shouldn't be near people who are sick. She subsequently called in sick and returned to work two days later, only to be sent home by a superior because of her continuing symptoms. Puckett returned to work a few days later but continued to feel unwell. A day later, she visited an NP, who diagnosed her with a sinus infection, gave her antibiotics, and wrote another note, saying she should take time off from work.

After this second absence, Puckett was terminated from her job. Until this bout of influenza, according to statements she made to the media, she hadn't missed work at all during the previous year and had received excellent performance evaluations. But University Hospitals apparently has a “no-fault” attendance policy, which means that a physician's note does not excuse an employee's absence. The policy only allows for certain types of absences, including approved leaves of absence, scheduled paid time off, jury duty or bereavement leave, and absences as a result of workplace illnesses or injuries.

On January 6, University Hospitals posted a note on its Facebook page, saying the facility was restricting “anyone, regardless of age, who exhibits flu-like symptoms.” The post led to several comments, some of which were critical of University Hospitals and referred to Puckett's firing. A hospital representative posted a comment in response that read, in part, “While we can't discusses the specifics of this case, I can say that there were additional issues that contributed to the decision to remove her from on-call status. No one is removed for simply having the flu, nor do we encourage staff to come to work if infected with the flu.”

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A NURSE'S RESPONSIBILITY

“Nurses have an obligation to report to work based on loyalty to patients and contractual obligations to the employer, unless circumstances justify calling in,” said Douglas P. Olsen, PhD, RN, associate professor at the Michigan State University College of Nursing in East Lansing, and a contributing editor of AJN. “Two legitimate justifications include being too ill to perform safely and being contagious. In these cases, nurses have an obligation to not attempt to give care to patients.” He added that employers have an interest in ensuring that staff do not use sick time capriciously, but consequences should be spelled out clearly in advance. According to Olsen, if facilities are going to sanction employees suspected of inappropriately using sick time, they should define what they mean by “inappropriate use” and identify the consequences.

Olsen also explained that an important aspect to calling in sick—especially if it's not justified, such as calling in every Friday before the weekend—is its impact on coworkers. “It is very discouraging to get to work and find that you are going to have a hard day because someone called in sick—one nurse short has a significant impact on everyone else's workload,” Olsen said. “I believe that the social disapproval earned by overuse keeps many nurses from abusing sick time.”

Incidents like the one involving Puckett are not isolated. In fact, based on anecdotal reports and studies, they seem to occur regularly. Even when they have an infectious condition, nurses frequently report being told to show up for work or face consequences. In a recent Medscape article, “Nurses Are Talking About: Why They Go to Work Sick,” senior editor Laura A. Stokowski, MS, RN, discusses nurse readers’ experiences calling in sick (go to www.medscape.com/viewarticle/851202_3). Many nurses reported they often went to work when ill because of workplace policies. Stokowski writes, “Every shift, every day of the year, nurses and physicians are compelled, through fear, guilt, or intimidation, to go to work when they are sick (known as ‘presenteeism’). And although healthcare employers profess to decry presenteeism, their policies and responses when employees call in sick suggest otherwise.”

The nurses’ descriptions of their workplace policies further show how taking time off when sick is discouraged, even if the nurse is very ill. Some said their employers assign another weekend shift when one is missed as a result of illness. Others said that nurses have to forfeit paid vacation days if they call in sick on the last day before or the first day after a vacation. According to another policy, nurses who call in sick a certain number of times are subject to an attendance review, which leads to the prohibition of sick calls for a year. Using sick days is held against nurses in another institution when they are evaluated or up for a promotion; this can also result in the denial of scheduling requests. Some employers even require nurses to use two or three vacation days before using sick time.

Study results support the premise that health care workers often show up for work when they are ill. According to a study in the November 2017 American Journal of Infection Control, more than 40% of health care workers went to work even though they were experiencing symptoms of a flu-like illness. Physicians and pharmacists were most likely to report to work while sick, and almost half of the nurses surveyed stated they'd worked while they had flu-like symptoms. Results of a survey of 538 attending physicians and advanced practice clinicians employed at an urban children's hospital and published in the September 2015 JAMA Pediatrics found that more than 80% worked while sick at least once in the past year, even though 95% believed doing so put patients at risk.

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RECOURSES FOR NURSES

Nurses often have limited recourse if they believe they've been unfairly disciplined or reprimanded for taking a legitimate sick day. Edie Brous, JD, MPH, MS, RN, an attorney in New York and Pennsylvania, and also a contributing editor of AJN, pointed out that these incidents tend to be addressed on a case-by-case basis, and there isn't a blanket rule to follow. “Throughout most of the country, employees can be fired at will, for the most part,” she said. “The employer doesn't need an excuse.”

In unionized facilities, nurses can file a labor law grievance, said Brous. “If nurses can show they have a note from a physician saying they are really ill and shouldn't be at work—then they would have a pretty good claim.” But the nurse would have to hire a lawyer and could end up spending a significant amount of money, Brous added, far more than what the hospital owes the nurse for the disciplinary action. “And the employer knows this,” Brous said. “So, they know you're not going to do that.” Most nurses are not unionized, she explained, and the better argument may be to pose this as a public health problem. “Nurses can complain to the Department of Health, [citing] a public health violation by the employer. Nurses can call and explain that they have a note from the doctor, they may be infectious and are not fit to work, and coming into work could create an infection control problem,” she said.

Christine Watts, MN, RN, senior director of labor at the Washington State Nurses Association, explained that although they have arbitrated some cases involving sick leave—winning some and losing others—the situation for nurses, at least in Washington, has changed for the better. “There is a new law in Washington State that says employers must provide employees with paid sick leave,” she said. “That's going to have a huge impact, because now employers cannot discipline for the use of sick leave. Now we have not only collective bargaining agreements, but legislative protection for the nurses we represent.” —Roxanne Nelson, BSN, RN

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