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Employment Law/discipline for using sick time


My employer has a policy that allows only 3 people on day shift and 4 people on nightshift to call in sick. The fourth person that calls in on day shift will be disciplined, and the fifth on nightshift will be disciplined, even though everyone has sick time available. There is no language in our union contract regarding discipline for sick time. Is this legal?


Absent some protection in the union contract, the employer would generally be within its rights to do this, although it is just terrible HR policy.  

There is one possible exception, however.  If a person calling in sick is able to qualify for protection under the Family and Medical Leave Act (FMLA), then it would be unlawful for the employer to do anything that interferes with the employee's right to take that leave.  FMLA leave is unpaid, but the absence is protected.

You can learn more about FMLA and how it applies at this U.S. Department of Labor web site:

I hope this is helpful to you.  

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Frank C. Magill


I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.


30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Texas, Illinois and Missouri state bars

J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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