My significant other is a Pharmacy Tech at a national-level super-retail chain. She is nonunion, hourly employee.

The company has a policy where any days missed must be phoned in to an 800 number, where you are given a confirmation number. Then you must phone the confirmation number in to the manager's office at that store.

She was hospitalized on whichever day, and phoned in that she was going to the ER with high fever, etc. When she arrived, she was not permitted to use her cell phone in the ER or any patient room, and shortly after arriving, she began numerous forms of treatment for a rather serious infection, and was "drugged up" on various painkillers, etc.

That was a week ago, and she was recently discharged. The doctors discovered what her infection was, and perscribed an antibiotic that works, and she is to rest and take her antibiotic until the infection clears, with a follow up visit in a week. The doctor would tell her to return to work after the follow up, if he decides she is healthy enough.

Now, she talked to her boss today because it is her first day out of the hospital. He told her she would have to return to work by Friday or face termination.

Is it legal for an employer to terminate an employee despite being told by a doctor not to work due to infection for a specified period?

Thank you for all of your assistance!

That depends. Outside of FMLA, a doctor's note has no force in law.

I find it hard to believe that she had no opportunity over the course of a week to somehow get in touch with her employer. You couldn't have called in for her? She can be fired for job abandonment whether she was in the hospital or not, if she went an entire week without calling in.

But in any case, since that does not appear to be on the table, a doctor's note only carries any legal weight if FMLA applies. FMLA applies when ALL of the following are true:

1.) She has worked for the employer for no less than 12 months
2.) In the last 12 months she has worked no less than 1,250 hours
3.) The employer has no less than 50 employees within 75 miles of her location
4.) She (or a qualified dependent) has a serious health condition as defined by the FMLA statute.

From your description, #4 is met. But ALL FOUR criteria must be met for FMLA to apply.

IF FMLA applies, then she has up to 12 weeks of job protected leave. IF FMLA does not apply, then the doctor's note holds no legal water and she can legally be fired for not returning to work.

She definately meets all above qualifications.

called boss after first day, called boss last day.


When she talked to her boss the first time, right after she was admitted to the ER, he told her not to worry about it, he would take care of it with their personnel office.

edit: She talked to her personell office and basically asked why didn't she qualify for FMLA, as per FMLA she had followed the rules (Called in as soon as she could in an emergency situation). The personell office called her back a few minutes later and basically apologized, and told her she was in the clear.

Now if only they could manage to get a union in that place!

Glad to hear it worked out.