Generally, employers cannot fire employees for calling out sick. However, there are a number of factors, circumstances, and related laws that cover this topic.
For example, did the employee have paid sick leave available that the employee requested to use for an illness? If so, an employer cannot lawfully fire employees for requesting or using available paid sick leave for qualifying reasons.
Also, under the Department of Fair Employment and Housing (“DFEH”) an illness can be considered a disability if it limits a major life activity, including if it just a cold or flu that limits an employee’s ability to work for even a short period like a few hours. Employers must provide reasonable accommodations for an employee’s disability, unless accommodation would produce undue hardship for an employer. What does undue hardship mean? It basically means that a jury believes the accommodation would be too unfair, expensive, or difficult for an employer to have to provide. The tricky part is that employers all take a risk when they deny an accommodation because employers will not know what a jury believes a reasonable accommodation or undue hardship is until a long time after the employers make their decisions.
Finally, under the California Family Rights Act (“CFRA”), employers cannot legally fire eligible employees for requesting or using up to 12 weeks of job protected leave in a 12-month period to care for their own or family member’s serious health condition. A closely related similar federal law is called Family Medical Leave Act (“FMLA”) which provides for FMLA leave and is essentially a narrower federal version of CFRA leave. It should go without saying that calling out sick with reasonable advanced notice to employers has more protection than calling out sick after no-showing.