Have you been written up for absences resulting from medical issues?
You are managing a medical condition. You are going to appointments. You are doing everything your doctor told you to do. And now your employer is writing you up for the time away from work that you needed for your appointments or because of how sick your condition made you, etc. Your employer is applying the “attendance policy” to your legitimate medical related absences as if you were skipping work to go to Disneyland or to hang out at the beach.
If your absences are related to a medical condition, applying a neutral attendance policy to punish you for those absences may be disability discrimination under California law.
You Should Give Us a Call So We Can Help You Navigate Getting Written Up for Being Out with a Medical Issue
This is one of the most common ways employers build a case to fire someone with a health condition — and one of the most common cases we take.
It works like this: Your employer knows you have a challenging health condition you are dealing with that sometimes makes it so you cannot work or so that you have to miss work for appointments/treatment. Your employer may have even approved intermittent FMLA or CFRA leave. But at some point the employer tells you that you cannot use your protected leave anymore or that you ran out or that you were never eligible. So you get written up for the absences. Each one goes in your file. Eventually, you have had too many absences under “the attendance policy” and your employer terminates your employment. Of course, they say it is not because of your medical issues, it is because you were not at work. Well that is generally considered the same thing under California law.
Penalizing you for absences related to your chronic medical issues is often disability discrimination in California.
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), an employer has an obligation to provide reasonable accommodations for employees with qualifying health conditions (most ongoing health conditions). One of the most common reasonable accommodations is a modified attendance policy or a leave of absence — meaning the employer must provide an exception for absences related to the health condition (and not apply its “points” system to those absences).
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.
When Write-Ups for Medical Absences Become Age Discrimination Too
Older workers are statistically more likely to have medical conditions that require ongoing treatment. More doctor appointments. More procedures. More recovery time. That is not a character flaw or performance issue — it is biology.
When an employer rigidly applies an attendance policy to an older worker’s absences related to health conditions, that may be both disability discrimination and age discrimination.
The pattern is common. An older employee with a chronic health condition gets written up for every medical-related absence even though younger employees are given “excused” absences. The older worker accumulates enough “occurrences” to be terminated and the employer simply points to the “attendance policy.”
If you are an older worker being disciplined for health-related absences, learn more about how age and health discrimination work together HERE.
What Your Employer Should Have Done
Before writing you up — before any discipline at all — your employer should have:
Engaged in the interactive process. This means having a real conversation with you about your medical needs and exploring what reasonable accommodations could allow you to continue doing your job–even if you need a long leave of absence to be able to come back and perform. It is not a box-checking exercise. It requires genuine, good-faith engagement.
Considered modifying the attendance policy as a reasonable accommodation. This might mean exempting medically necessary absences from the point system, allowing a flexible schedule for treatment appointments, allowing you to make up missed time, or adjusting your start and end times around recurring appointments.
Explored other accommodations. Remote work on treatment days. A temporary reduction in hours. Reassignment of non-essential duties during treatment periods.
If your employer skipped all of this and went straight to write-ups, they likely failed their legal obligation — and every write-up they issued may be have been unlawful discrimination.
Contact Us - Call or Submit the Case Review Form
Whether you are being written up now or have already been fired based on attendance, these cases are exactly what we handle. We can assess whether the write ups or other discipline for absences related to medical issues was unlawful discrimination.