Can my employer fire me for attendance points I got while out with a work injury?

Is it legal to give points for days I missed because of a work injury?

Start with the bad news. The Illinois Supreme Court has said an employer may fire an employee for excess absenteeism even if a compensable injury caused it (Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992)). A comp claim is not a shield against an attendance policy.

The policy still can't be a cover story. An attendance rule that looks neutral can be retaliation if its real purpose and effect is to penalize people for filing comp claims (Siekierka v. United Steel Deck, Inc., 373 Ill. App. 3d 214, 222 (Ill. App. Ct. 2007)). The worker in that case was fired when his leave ran out while he was still waiting on a surgery that, on his evidence, the comp insurer had delayed. The company said he failed to return from leave. The appellate court said a jury had to decide the real reason.

Which absences can't be counted against me?

FMLA days. Federal regulations say FMLA leave can't be counted under a no-fault attendance policy (29 C.F.R. § 825.220(c)). You're eligible if you've worked there 12 months and 1,250 hours in the past year and the company has 50 employees within 75 miles (29 U.S.C. § 2611(2)). Time off for a work injury can run as FMLA leave at the same time (29 C.F.R. § 825.702(d)(2)). Ask HR in writing which of your injury absences were designated as FMLA.

Days your own doctor had you off work. In one Chicago-area case, a grocery chain sent two injured employees to its own examining doctors, who cleared them. Their treating doctors had not. The company recoded their absences, then fired each of them after three days without a call-in. The appellate court held that an employer may not fire an employee based solely on a disputed medical exam while the comp dispute is pending, because resolving that dispute is the Commission's job (Grabs v. Safeway, Inc., 395 Ill. App. 3d 286 (Ill. App. Ct. 2009)). The employees still had to prove the firing was tied to their comp rights.

Treatment appointments. Asking for and getting medical care for a work injury is the first step in using your rights under the comp act (Hinthorn v. Roland's of Bloomington, Inc., 119 Ill. 2d 526 (1988)). Points assessed for going to that care deserve a hard look.

I came back with restrictions and they put me in a job I couldn't do. Does that matter?

It may matter more than the points. The state retaliation claim doesn't require an employer to find you different work (Hartlein, 151 Ill. 2d at 160). Federal disability law can. Under the ADA, discrimination includes failing to make reasonable accommodations for the known limitations of a qualified employee with a disability, unless the employer shows undue hardship (42 U.S.C. § 12112(b)(5)(A)). The Illinois Human Rights Act covers disability discrimination as well.

Whether a particular injury counts as a disability depends on how much it limits you. Put that question to a lawyer early, because these deadlines are shorter. A federal charge is due at the EEOC within 300 days in Illinois (42 U.S.C. § 2000e-5(e)(1), which the ADA adopts in 42 U.S.C. § 12117(a)). A state charge is due at the Department of Human Rights within two years (775 ILCS 5/7A-102(A)(1)).

How do I show the points were an excuse?

The burden is yours (Michael v. Precision Alliance Group, LLC, 2014 IL 117376), so collect what a jury would want to see. The point history, entry by entry. The written policy, including what it says is excused. Any change in how your absences were coded, and the date it changed. Whether coworkers with the same point total kept their jobs. What the company told the unemployment office.

What should I do now?

• Ask HR in writing for your attendance record and the attendance policy.
• Match every point to a date, and every date to whatever covers it: a doctor's note, a comp pay period, an FMLA designation.
• Keep every work-status note from your treating doctor.
• If you already have a comp lawyer, tell that lawyer about the firing. The retaliation and disability claims are separate cases on separate clocks, and not every comp lawyer handles them.

Working with GB Law

GB Law starts with the facts and tells you which claims you have. A case like this often needs more than one lawyer, one for the injury and one for the job. Where a claim belongs with a trial firm or another attorney we work with, we make the introduction and you know who is handling what. If you already have a comp lawyer, that lawyer stays on the comp claim.

Questions people ask

Can I be fired for attendance while I'm on workers' comp?

Yes, if the policy is real and applied to everyone the same way. No, if it's cover for punishing the claim. The second answer takes evidence.

Do FMLA days count as points?

No (29 C.F.R. § 825.220(c)).

The company doctor cleared me and mine didn't. Do I have to go back?

An employer can't fire you based solely on its own doctor's disputed opinion while the Commission hasn't resolved the conflict. You still have to show the firing was tied to your comp claim (Grabs, 395 Ill. App. 3d 286). That doesn't make staying home safe. Call your comp lawyer the day the return-to-work letter arrives.

How long do I have to sue?

Five years for the comp retaliation claim against a private employer (735 ILCS 5/13-205). Two years under the FMLA, or three for a willful violation (29 U.S.C. § 2617(c)). For a disability claim, 300 days at the EEOC and two years at the Department of Human Rights, as explained above.