Picture this scenario: You are at work when you receive a call from your child’s school. Your child is vomiting and is running a fever, and the school is demanding that you come to pick your child up immediately. There is a problem, however. Your employer is not adequately staffed today and would need to close the business down for the day if you were to leave. Not only this, but there are no family friends or relatives available who can retrieve and care for your child. With no other alternative, you leave work over your boss’s objections to pick up your child and care for him or her.
The next day you are able to return to work and are met at the door by your boss. He or she is not too happy about you leaving the previous day. He or she gruffly informs you to clean out your desk and to be on your way. Is this legal and, perhaps more importantly, what can you do about it?
No Right to Sick Time
Generally speaking, there is no federal or state “right” for Arizona workers to be given sick time off, paid or unpaid, to care for themselves or their loved ones. The Family Medical Leave Act (FMLA) would not come into play in this situation as (1) the Act only covers employers who employ more than 50 individuals; and more fundamentally (2) the Act only applies where the family member is suffering from a serious health condition (vomiting and a fever by themselves would not constitute a serious health condition). There is no other federal or state law that would apply in this situation to mandate that your employer give you time off.
This being said, despite Arizona being an “at-will” employment state an Arizona employer may not terminate an employee for a reason that would violate “public policy.” At the very least, a terminated worker in this situation may have a legitimate argument that his or her termination did in fact violate public policy.
What To Do to Avoid This Situation
Even if this hypothetical scenario seems a bit farfetched, it is important to think through what you would or could do if you or a loved one were ever faced with this difficult decision. Consider taking the following actions:
- Familiarizing yourself ahead of time with your company’s sick leave policy: Although nothing requires an employer to have a sick leave policy for his or her employees, if such a policy exists it may be beneficial to learn about it ahead of time. If it does not cover emergency leaves of absence to pick up a sick child, ask your employer about this situation and how it should be handled before the situation arises.
- Filing a complaint with the Equal Employment Opportunity Commission and/or the Arizona Attorney General: If you are in fact terminated for taking an emergency leave of absence to care for a child, you may wish to speak with either the Equal Employment Opportunity Commission (EEOC) and/or the Arizona Attorney General’s office. Before you would be able to file a wrongful termination suit, these agencies would need to complete an investigation and attempt to resolve any dispute anyway, so it would not hurt to involve them as soon as possible once you have been terminated and it is clear your employer will not willingly give you your job back.
- Consider Whether to File a Wrongful Termination Lawsuit: If the EEOC and/or Arizona Attorney General do not find sufficient grounds to pursue an investigation and claim against your employer, use this decision to carefully consider whether you would benefit from filing a wrongful termination claim. Review the findings and report from these agencies and determine whether their decision is based on the law (which would suggest a wrongful termination lawsuit would be unsuccessful) or on the available evidence (which would suggest your claim might succeed if you are able to locate additional witnesses or evidence.