At least once a month our office receives a call from a potential client that claims he or she has been wrongfully terminated while under the care of their doctor.  However, what many people do not realize is that a doctor's excuse is not what gives them protected leave from work.  It is laws like the Family Medical Leave Act ("FMLA") or the American's with Disabilities Act ("ADA") that provide such protection.  Part of the problem is employer policies that the employer does not have to abide by, and another part is that somehow many employees believe doctor's excuses are like immunity cards that requires the employer to keep them employed no matter how long they are under doctor's care.

First, nearly every employer gives their employees access to an employee handbook that contains policies for issues, such as, sick leave and vacation leave.  However, in every handbook there is some language that says these policies are not a contract, but are rather just a guide for the employee.  What this means is that employers only have to follow their own rules when they want to do so.  For example, if an employee has earned seven (7) sick days, this does not mean the employer is required to allow an employee to take even one (1) sick day no matter how valid the doctor's excuse is that is presented to the employer.  So an employer can terminate an employee who has to go to a doctor for an injury on the job even if they have enough sick days to cover the leave.

Second, we are not sure who started the myth or how it has spread so widely among employees across the State, but employers are not required to keep a person employed while an employee is under a doctor's care.  This is a harsh reality many that have been fed this lie just cannot come to recognize.  In fact, our office had a take a case to trial for a client in the past few years purely on the client's refusal to believe our advice about this issue.  The client lost her case at trial when there was significant money offered to settle the case, and the client took this action as the client believed a jury would disregard the law and confirm her same mistaken belief.

Finally, what is actually protected is leave under the FMLA and the ADA.  Under the FMLA an employee can take up to twelve (12) weeks of leave for a serious medical issue if they meet all the qualifications for the FMLA.  Additionally, an employee could be entitled to some leave to take care of a disability under the ADA.  It is a gray area as to how much leave could be covered as this issue is still being litigated across the country.  One (1) week up to a month is a safe bet depending on the circumstances of the employer, but more than that is unlikely to be allowed in Mississippi.  So if you do have to take any extended sick leave, we would advise you look into whether you might be covered by one of these laws prior to taking such leave if possible to protect your employment.