Fired for for Attendance for Taking Too Many Sick Days in California?
We see this pattern repeatedly in disability discrimination cases.
An employee develops a health condition that occasionally prevents them from working or requires time away for appointments or treatment. The employer knows about the condition. Sometimes the employer has even approved intermittent FMLA or CFRA leave.
Then something changes. The employee is told the absences are no longer protected, that the employee has “used up” the available leave, or that the attendance policy applies regardless of the reason for the absence.
The write-ups begin.
One absence becomes one occurrence. Another becomes another point. Eventually, the employer says the employee has accumulated too many attendance violations and terminates them.
The employer may insist: “We didn’t fire you because of your medical condition. We fired you because of your attendance.”
But when the attendance problems the employer relies upon were caused by a disability or need for reasonable accommodation, the distinction may not get the employer very far.
California's Paid Sick Leave Laws Can Protect You From Attendance Points/Write-Ups
There is another protection that may apply before we even get to disability discrimination or reasonable accommodation: California’s paid sick leave laws.
Most California employees are entitled to paid sick leave that can be used for qualifying purposes, including diagnosis, care, treatment, or preventive care for the employee’s own health condition. If you have accrued and available paid sick leave and properly use it for a covered reason, your employer generally cannot count that protected sick time against you under an attendance policy or discipline you for using it.
That matters when employers use “points,” “occurrences,” or progressive discipline. An employer generally cannot take an absence that California law protects as paid sick leave, assign an attendance point to it, and then use that point as part of the basis for a warning, suspension, or termination.
So if you were written up for calling in sick, one of the first questions is simple: Did you have available paid sick leave, and was the absence one California law protected?
If so, the attendance point or write-up itself may be a problem—quite apart from whether the employer also violated California disability-discrimination or reasonable-accommodation laws.
Paid sick leave does not protect every absence caused by illness. If you have exhausted your accrued and available paid sick leave, California’s paid sick leave law by itself generally does not prevent an employer from applying its attendance policy to additional absences. But that does not necessarily end the analysis. Additional absences may still be protected by FMLA, CFRA, disability accommodation laws, or other protections depending on the circumstances.
Why "We Are Just Following the Policy" Is Not a Good Excuse
Employers love attendance policies with a point system or an occurrence tracker. They think it somehow protects them because “everyone is treated the same.”
But not all absences are the same under California law.
Under FEHA (the Fair Employment and Housing Act), employers may be required to reasonably accommodate employees with qualifying disabilities. Depending on the circumstances, a reasonable accommodation can include modifying an attendance policy, allowing intermittent time off, or providing a leave of absence. That means an employer may have to treat disability-related absences differently from ordinary unexcused absences rather than simply assigning the same “points” or “occurrences” to both.
This is not optional. It is not a favor the employer can give you if they feel like you are “good enough” employee. It is a legal obligation, and the employer must engage in the interactive process (essentially a back and forth conversation with you and/or your healthcare provider) to determine what reasonable accommodations may work for you.
Write ups (or other employer discipline) for absences related to health conditions may be illegal in addition to being unfair. And when termination of employment follows, the employer may have a serious legal problem on its hands.
What Your Employer Should Have Done
If your employer knew that your attendance problems were related to a medical condition, it may have had obligations to address the medical issue before simply treating the absences as ordinary attendance violations. Depending on the circumstances, that can include:
Engaging in the interactive process. This means having a real conversation with you about your medical limitations and exploring reasonable accommodations that could allow you to continue working—or return to work after a reasonable period of leave. The interactive process should be a genuine effort to find a workable solution, not simply a box to check before termination.
Considering changes to the attendance policy. A reasonable accommodation may include excusing disability-related absences from an attendance-point system, allowing intermittent time off, providing flexibility for treatment appointments, or adjusting work hours when reasonable.
Considering other reasonable accommodations. Depending on the job and the employee’s limitations, other possibilities may include medical leave, a modified schedule, temporary changes to duties, or other accommodations that allow the employee to perform the essential functions of the job.
If the employer knew your absences were connected to a medical condition but simply counted the absences, issued write-ups, and moved toward termination without considering reasonable accommodation, those facts deserve a much closer look.
What Attendance Records Can Reveal in a Disability Case
In litigating disability discrimination cases, I often find that attendance records and write-ups become some of the most important evidence in the case. They can show when medically related absences began being counted against an employee, what the employer knew about the medical condition, whether exceptions were available for other absences, and how the employer built the stated reason for an eventual termination.
The label an employer puts on a termination—“attendance,” “reliability,” “job abandonment,” or something similar—is not necessarily the end of the analysis. What matters is what actually happened and why.
What If Age Discrimination Is Involved Too?
Medical conditions and age discrimination sometimes overlap. For example, an older employee may be disciplined for medically related absences while younger employees receive exceptions for comparable attendance issues. In that situation, both disability and age discrimination may need to be considered.
Being Written Up for Absences? Tell Me What is Happening.
Frequently Asked Questions About Medical Absences and Write-Ups
Can my employer write me up for calling in sick in California?
Sometimes. But if your absence is related to a disability, medical condition, protected medical leave, or a need for reasonable accommodation, your employer may have legal obligations before simply treating the absence as an attendance violation. The answer depends on why you were absent, what your employer knew, and what protections applied to the absence.
Can my employer give me attendance points for absences caused by a disability?
Not necessarily. An employer may need to modify an attendance policy as a reasonable accommodation for a disability. In some circumstances, that can mean excusing medically necessary absences or not assigning the same attendance points that would apply to ordinary unexcused absences.
Can my employer give me an attendance point/write me up for using a paid sick day?
Generally, an employer cannot discipline you for properly using accrued and available California paid sick leave for a protected purpose. That can include assigning an “occurrence” or attendance point that may lead to discipline or termination.
What if I used all of my California Paid Sick Days but I am still sick?
Using all of your paid sick leave does not necessarily mean your remaining absences are unprotected. Depending on your circumstances, FMLA, CFRA, disability discrimination and reasonable accommodation laws may provide additional protections.
Can I be fired for too many absences if I have a medical condition?
Possibly—but an employer cannot necessarily turn disability-related absences into a lawful termination simply by counting them under an attendance policy. If reasonable accommodation, medical leave, FMLA, CFRA, or another protection applied to some of the absences, the employer may have been required to treat them differently.
Does a doctor's note protect me from being written up for missing work?
A doctor’s note does not automatically make every absence legally protected. But it can be very important because it may put the employer on notice that your attendance problem is connected to a medical condition and that you may need leave or another reasonable accommodation.
Can my employer say my medical absences are unexcused?
Calling an absence “unexcused” does not determine whether it was legally protected. What matters is why you were absent, what the employer knew, whether you were entitled to protected leave, and whether the absence should have been considered as part of a reasonable accommodation.
What if I have already used all of my FMLA or CFRA leave?
Running out of FMLA or CFRA leave does not necessarily end the analysis. California disability law may separately require an employer to consider additional leave, intermittent time off, or another reasonable accommodation depending on the circumstances.
If you were fired for attendance and your absences related to a health condition, I want to hear about it.
You do not have to wait until your employer fires you to find out whether medically related absences are being handled properly. If you are receiving attendance points, warnings, write-ups, or threats of termination because you missed work for a medical condition, treatment, or appointments, tell me what is happening.
And if you have already been fired for attendance, I can review the circumstances leading up to the termination—including the absences the employer counted against you and what the employer knew about your medical condition.