Can You Be Fired for Calling Out Sick in New York? How to Know When a Termination May Violate the Law

Getting sick should not put your livelihood in jeopardy.

Yet for many New York workers, calling out sick comes with an uncomfortable calculation: Can I afford to miss the shift? Will my manager hold it against me? Could I lose hours, or even my job, for staying home?

New York is generally an at-will employment state. That gives employers significant flexibility when making employment decisions. But at-will employment is not a license to violate worker-protection laws. New York State and New York City both provide important protections for employees who take qualifying sick leave, and an employer may break the law when it fires, disciplines, demotes, or otherwise retaliates against an employee for exercising those rights.

If you believe you lost your job because you took legally protected sick leave, the circumstances surrounding your termination matter. Morgan & Morgan stands with workers, fights to defend workers’ rights, and seeks to hold employers accountable when they violate those rights. To learn more about your legal options, contact Morgan & Morgan today for a free case evaluation.

New York Is an At-Will Employment State, but There Are Limits

Under New York's general at-will employment rule, an employer may terminate an employee without having to establish "cause," provided the termination does not violate a law, employment contract, or another recognized legal protection. New York courts have repeatedly recognized that statutory protections can limit an employer's otherwise broad ability to terminate an at-will employee.

That distinction is particularly important when sick leave is involved.

An employer might lawfully terminate an employee because of documented performance problems, misconduct, layoffs, or other legitimate reasons even if that employee has previously been sick. But an employer generally cannot fire someone because the employee requested or used sick leave protected by law.

You may be asking, "Was I fired after I called out sick?" But instead, you should be asking, "Was I fired because I exercised a protected right?"

When Sick Leave Becomes Legally Protected Activity in New York

New York State's sick leave law covers private-sector workers throughout the state, including full-time, part-time, seasonal, and overtime-exempt employees. The amount of leave available depends on the employer's size and, for very small employers, its income.

Generally:

• Employers with 100 or more employees must provide up to 56 hours of paid sick leave per calendar year.
• Employers with five to 99 employees must provide up to 40 hours of paid sick leave.
• Employers with four or fewer employees and more than $1 million in net income must provide up to 40 hours of paid sick leave.
• Employers with four or fewer employees and $1 million or less in net income must provide up to 40 hours of unpaid sick leave.

Employees may generally use qualifying sick leave for their own mental or physical illness, injury, diagnosis, treatment, or preventive care, as well as certain health needs of covered family members.

Most importantly, New York State expressly prohibits employers from retaliating against employees for exercising their sick-leave rights. State guidance also provides that an employee returning from protected sick leave must be restored to the position the employee held before the leave, with the same pay and other terms and conditions of employment.

NYC Workers Have Additional Protected Time Off Rights

Employees working in New York City may have even broader protections.

As of February 22, 2026, New York City's expanded Protected Time Off Law, formerly commonly referred to as the Paid Safe and Sick Leave Law, provides covered workers with protected time off for numerous reasons, including illness, medical care, family care, childcare needs, certain safety-related circumstances, and specified housing or public-benefit proceedings.

Most covered employees are entitled to up to 40 or 56 hours of paid protected time off, depending on the employer, as well as 32 hours of unpaid protected time off that is immediately available.

NYC law also makes retaliation illegal. Employers cannot punish or fire workers because they requested or used protected time off or reported a potential violation. The city's retaliation protections are broad and may cover more than outright termination.

Fired Right After Sick Leave? Timing Can Matter

Imagine an employee with a solid work history wakes up ill, follows the employer's call-out procedure, and uses accrued protected sick leave.

Two days later, the employee returns. By Friday, they're fired.

Does that automatically prove retaliation? No. Employers can still make legitimate employment decisions while an employee is exercising leave rights.

But unusually close timing between protected activity and an adverse employment action may be important evidence, particularly when combined with other facts suggesting that the sick leave influenced the decision.

For example, questions may arise if a supervisor complained about the employee "calling out," warned that missing another shift would cost the employee their job, questioned the legitimacy of the illness, or suddenly began documenting alleged performance problems immediately after the employee took protected leave.

A termination that appears suspicious in isolation can become much more significant when viewed alongside emails, text messages, schedules, disciplinary records, and the employee's prior performance history.

Retaliation Does Not Always Mean Getting Fired

Losing your job is one of the clearest potential forms of retaliation, but it isn't the only one.

NYC guidance says unlawful retaliation can include actions such as discipline, discharge, demotion, suspension, harassment, reduced hours or pay, threats, blacklisting, and certain absence-control policies that count protected leave against employees. Employers also cannot penalize workers for failing to meet a quota because they used legally protected time off.

That means a worker who still technically has a job may nevertheless have experienced unlawful retaliation.

For example, an employee could return from sick leave to discover that their regular 40-hour schedule has been cut to 15 hours. A supervisor might remove desirable shifts, strip away responsibilities, issue disciplinary points, deny advancement opportunities, or move the employee into a lower-paying position.

The label an employer puts on the action does not necessarily determine whether it was lawful.

Being Fired for an Absence Is Different From Being Fired for Using Protected Leave

Not every illness-related absence receives unlimited legal protection.

Employees generally still must comply with lawful workplace policies, and protected sick-leave laws do not necessarily excuse unrelated misconduct, excessive absences that are not protected, job abandonment, or failure to follow permissible notice requirements.

The key issue is whether the particular absence was protected and whether the employer penalized the employee for exercising that protection.

NYC rules, for example, limit what employers may demand from workers using protected time off. For an unexpected illness, employees generally cannot be required to give advance notice. NYC guidance also states that employers cannot require documentation when protected time off lasts three or fewer consecutive workdays.

An employer therefore cannot simply transform protected leave into misconduct by applying a policy that conflicts with the law.

Evidence That May Help Connect Sick Leave to a Termination

Employers rarely put in writing, "We are firing you because you used legally protected sick leave."

Retaliation cases often depend on the surrounding evidence. Relevant evidence may include:

• Text messages, emails, or workplace messages discussing the employee's absence
• Statements from supervisors criticizing the employee for using sick time
• Threats about what would happen if the employee called out
• A termination or disciplinary notice issued shortly after protected leave
• Work schedules showing a sudden reduction in hours
• Performance reviews from before and after the leave
• Attendance records
• Sick-leave balances and payroll records
• Doctor's notes or other documentation provided to the employer
• Copies of the employer's attendance, leave, and disciplinary policies
• Evidence showing that the employer treated similar employees differently
• Statements from coworkers who witnessed relevant conversations

No single piece of evidence necessarily proves retaliation. The overall timeline can be critical.

What Should You Document Before and After Taking Sick Leave?

Whenever possible, employees should create and preserve a clear record of their communications about leave.

If you call out sick, keep the text message, email, app notification, or other communication showing when you notified your employer. Save your employer's response. Keep copies of schedules showing the shifts you were supposed to work and any later changes.

Employees should also save pay stubs, performance evaluations, written warnings, employee handbooks, sick-time policies, and records showing accrued and used leave.

If a supervisor makes a concerning comment verbally, write down what was said, who said it, who heard it, and approximately when it occurred while the event is still fresh in your memory.

And if you are fired, ask for and preserve any paperwork identifying the reason for the termination.

The difference between a difficult termination and a potentially unlawful retaliation case can sometimes be found in the record of what happened in the days and weeks surrounding the employee's leave.

Morgan & Morgan Stands With Workers Who Face Retaliation for Taking Care of Their Health

Workers should not have to choose between protecting their health and protecting their paycheck.

New York's sick-leave protections exist so eligible employees can take qualifying time away from work without being punished simply for exercising a right provided by law. When employers retaliate by firing workers, cutting their hours, demoting them, or imposing unlawful discipline, employees may have options for fighting back.

If you believe your employer retaliated against you for taking protected sick leave in New York, Morgan & Morgan may be able to help. Contact Morgan & Morgan for a free case evaluation to learn more about your rights and your potential legal options.

Frequently Asked Questions

Can my employer fire me for calling out sick in New York?

It depends on the circumstances. New York generally follows the at-will employment rule, meaning employers have considerable freedom to terminate employees. But that freedom does not allow an employer to violate statutes protecting employees from retaliation.

New York State requires covered employers to provide qualifying sick leave and prohibits retaliation against employees who exercise their rights under the law. Employees may use protected sick leave for qualifying reasons such as their own physical or mental illness, injury, diagnosis, treatment, or preventive care, as well as certain health needs involving family members.

An employee can still potentially be terminated for a legitimate, non-retaliatory reason while taking or after taking sick leave. The legal concern arises when the employer's decision was motivated by the employee's exercise of protected leave rights.

If you were fired shortly after calling out sick, evidence such as your sick-leave balance, communications with your supervisor, prior work record, termination paperwork, and the employer's stated reason for firing you may help establish what happened.

Can I be fired for using paid sick leave in NYC?

An employer generally cannot lawfully fire you because you requested or used protected time off to which you were entitled under NYC law.

New York City's Protected Time Off Law specifically prohibits retaliation against employees for exercising or attempting to exercise their rights. Retaliation can include termination, but it can also include discipline, demotion, suspension, reduced hours or pay, harassment, threats, and other actions that punish or discourage an employee from exercising protected rights.

This does not mean that using protected time off makes someone immune from all workplace discipline or termination. An employer may still act for legitimate reasons unrelated to the leave.

The important question is why the employment action occurred. If your manager repeatedly complained about your sick leave, threatened you for using it, counted protected days against an attendance policy, or terminated you shortly after you returned, those facts may deserve closer examination.

What if I was fired immediately after returning from sick leave?

A termination immediately following protected sick leave can raise concerns about retaliation, although timing alone does not necessarily prove that an employer violated the law.

The surrounding circumstances matter. Consider what happened before your leave, while you were out, and immediately after you returned. Were you previously receiving positive evaluations? Did a supervisor complain about your absence? Were you warned that taking sick time would have consequences? Did the employer suddenly identify performance problems that had never been raised before?

A short period between protected leave and termination can become more meaningful when other evidence points in the same direction.

Employees who experience this situation should preserve communications, schedules, leave records, performance evaluations, disciplinary paperwork, and termination documents. A detailed written timeline can also help reconstruct what happened and identify whether the employer's explanation matches the record.

Does my employer have to give me my job back after sick leave?

For leave protected by New York State's sick-leave law, state guidance says employees must be restored after the leave to the position they held before taking sick leave, with the same pay and other terms and conditions of employment.

That means an employer generally cannot use an employee's exercise of protected sick leave as an opportunity to punish the worker by reducing their position, compensation, or employment status.

However, sick leave does not guarantee employment regardless of everything else happening in the workplace. An employer may still be able to make a legitimate employment decision for a lawful reason unrelated to an employee's leave.

When an employee comes back from protected leave and suddenly discovers that their job is gone, their hours have been slashed, their pay has changed, or they have been demoted, the reason for the change becomes particularly important.

How do I prove my firing was retaliation?

Retaliation is often proven through the circumstances surrounding an employer's decision rather than through a direct admission.

Evidence may include close timing between your protected sick leave and your termination, negative statements from supervisors about your leave, threats concerning future absences, inconsistent explanations for the firing, sudden disciplinary problems after you requested leave, or evidence that the employer applied its policies differently to you because you exercised protected rights.

Documents can be especially important. Preserve relevant emails, texts, schedules, pay records, leave balances, performance reviews, disciplinary notices, employee policies, and termination paperwork.

NYC's retaliation protections are broad: city guidance states that retaliation can occur when an employee's exercise or attempted exercise of protected rights motivated the employer's action, even when other factors may also have played a role.

If you suspect your sick leave contributed to your firing or another adverse employment action, speaking with an employment attorney at Morgan & Morgan can help you evaluate the evidence and determine what legal protections may apply.