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  1. #1
    Join Date
    Jun 2011
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    2

    Default Required to Work Although Sick - Is a "No Call Out Policy" Illegal

    I work in the state of New Jersey. During work hours I was getting unbearable pain in the abdomen. Because there is no call out policy, I went to the restroom to ask other employees to come in for me so i can leave.

    No one else could come in. My manager noticed I was in the restroom for 10 minutes and asked what was going on. I told him of my pain and he told me to get myself together and go back to work. I repeated that i could not and he sarcastically suggested "you want me to call the ambulence" I agreed having the ems come.

    They checked me out, and along with the cops there i secretly told them this was the only way i could get out of work because i was in pain but not allowed to leave. They told him i could not work, said they were sending me to the hospital. I walked out with them and ended up driving myself to the hospital.

    Is there anything i can do to proceed to sue my company? Previous employees were fired because they called out sick, there is "no call out policy" . I have been working there over a year and am forced to come in sick if i can not find coverage.

    Also, we (the employees) work 8 or more hrs a day and only get one unpaid thirty minute break. Can I use this to build a case against them with labor laws, or anything?

    -Thanks in advance

  2. #2
    Join Date
    Jan 2008
    Location
    Toledo, OH
    Posts
    16,307

    Default Re: Required to Work Although Sick "No Call Out Policy" Illegal

    There is no law in the state of New Jersey that forces employers to provide sick leave - paid or unpaid. You have no grounds to sue.

    If you're unable to meet the terms of your current employment, you'd do well to seek other employment.

  3. #3
    Join Date
    Dec 2009
    Location
    Lake Chapala
    Posts
    3,025

    Default Re: Required to Work Although Sick "No Call Out Policy" Illegal

    OP, it doesn't matter how many forums or sites you post this issue to, the answers are always going to be the same.

  4. #4

    Default Re: Required to Work Although Sick "No Call Out Policy" Illegal

    The Family Medical Leave Act (“FMLA”) mandates that an employee at a company with 50 or more workers can take up to twelve weeks of unpaid medical leave to address “serious health conditions” for herself or for a spouse or a child. New Jersey may have a similar state law covering smaller employers. Presuming (1) your employer is covered under the FMLA and/or an analogous state law and (2) you are otherwise eligible, e.g., you have worked the requisite number 1250 minimum hours over the preceding twelve months, your employer cannot legally refuse you to take time off to deal with a serious health condition. Unremitting abdominal pain would probably qualify as a serious health condition.

    First, take care of your health. Do not allow your health to deteriorate in order to satisfy your employer or for any other reason. Second, you may want to speak with someone in the employer's HR Dept. to advise them you need to take FMLA leave. (This suggestion presumes someone “reasonable” works in the HR Dept.) Third, if the employer retaliates against you in any significant way, e.g., terminating you for seeking to take leave; refusing to rehire you after your leave, then you need to consult with an employment law attorney to consider your options.

  5. #5
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,440

    Default Re: Required to Work Although Sick "No Call Out Policy" Illegal

    New Jersey does not have a similar state law for small employers.

    Not all or even most illness qualifies as a serious health condition for FMLA purposes.

  6. #6
    Join Date
    Apr 2007
    Location
    Il.(near StL,Mo.)
    Posts
    5,252

    Default Re: Required to Work Although Sick - Is a "No Call Out Policy" Illegal

    Quote Quoting tms27
    View Post
    Also, we (the employees) work 8 or more hrs a day and only get one unpaid thirty minute break. Can I use this to build a case against them with labor laws, or anything?
    New Jersey does not require employers give meal and/or rest breaks to adults. (only minors under 18) Your
    employer is giving more than is required by law.

  7. #7

    Default Re: Required to Work Although Sick - Is a "No Call Out Policy" Illegal

    While the operation of its no-fault attendance policy may not be per se unlawful, your employer’s apparent indiscriminate treatment of absences related to an employee’s seeking treatment for serious health conditions for herself (or for her spouse or child) could contravene federal law. The company can not lawfully lump the FMLA covered leave together with uncovered time off (e.g., absences not related to serious medical issues) to justify taking disciplinary action against an employee who took FMLA leave.

    If you or other employees need to take time off to attend to a serious medical issue, the FMLA requires your employer to relent notwithstanding its attendance policy. Whether your abdominal pain constitutes a serious medical issue is an important fact issue. You will want to consult with counsel in order to know how to proceed.

  8. #8
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,440

    Default Re: Required to Work Although Sick - Is a "No Call Out Policy" Illegal

    Have we established for certain that FMLA applies? I don't see where the poster has indicated the size of the company or whether they are full or part time; a part time employee may not have the requisite hours for FMLA.

  9. #9
    Join Date
    Apr 2007
    Location
    Il.(near StL,Mo.)
    Posts
    5,252

    Default Re: Required to Work Although Sick - Is a "No Call Out Policy" Illegal

    Agree with cbg. Before we get too involved in FMLA, it would be best to know if FMLA applies
    in OP's case.

  10. #10

    Default Re: Required to Work Although Sick - Is a "No Call Out Policy" Illegal

    At the end of the day, original poster should consult with local employment counsel to determine whether FMLA and/or the parallel state law apply here. Unfortunately, if FMLA or the NJ Family Leave Act does not apply, she may not have any option to challenge her employer's essential "no sick leave ever" policy.

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