Being fired for calling in sick feels like a gut punch, especially when you did everything right. You followed the call-out procedure. You used the time off that you legally earned. And still, you find yourself without a job. If this sounds familiar, you are not alone, and you may have more legal protection than you think.
New York has some of the strongest sick leave laws in the country. Understanding how those laws apply to your situation, and where the gaps exist, is the first step toward knowing whether your termination was legal.
What Does New York Law Actually Say About Sick Leave?
New York State law requires most employers to provide paid or unpaid sick leave, and using that leave is legally protected.
Under the New York State Paid Sick Leave Law, which took effect in September 2020 and has been in force since, employers must provide eligible employees with sick leave based on the size of their business. Employees at companies with 100 or more workers must be permitted to accrue and use up to 56 hours of paid sick leave per year. Employers with 5 to 99 employees must provide up to 40 hours of paid sick leave annually, while employers with 4 or fewer employees must provide up to 40 hours of paid or unpaid sick leave, depending on net income.
The law is codified in New York Labor Law Section 196-b. It explicitly prohibits employers from retaliating against employees for using sick leave they are entitled to under the statute.
Retaliation can take many forms. A termination, a demotion, a reduction in hours, a negative performance review, or any other adverse action tied to your use of sick leave may qualify as unlawful retaliation.
Does New York City Offer Additional Protections?
Yes. The New York City Earned Safe and Sick Time Act gives Brooklyn workers broader protections than state law alone provides.
Brooklyn falls under New York City jurisdiction, which means the NYC Earned Safe and Sick Time Act (ESSTA) applies to workers here. The ESSTA, administered by the NYC Department of Consumer and Worker Protection, applies to employees who work more than 80 hours per year in New York City.
Under the ESSTA, employers generally must provide paid sick and safe leave consistent with New York State’s paid sick leave requirements. The law covers employees who work more than 80 hours in a calendar year in New York City. The law covers a range of qualifying reasons, including personal illness, care for a family member, or situations involving domestic violence, sexual assault, or stalking.
Critically, the ESSTA makes it unlawful for an employer to discharge, threaten, penalize, or otherwise retaliate against an employee for exercising rights under the law. That includes calling in sick and using accrued leave.
Beginning in 2025, New York employers must also provide eligible employees with up to 20 hours of paid prenatal personal leave for pregnancy-related healthcare appointments and services.
When Can an Employer Still Fire You for an Absence?
New York is an at-will employment state, meaning employers can terminate workers for many reasons, but not for using protected sick leave.
This is where things get nuanced. New York follows the at-will employment doctrine, which gives employers broad authority to terminate employees for almost any reason or no reason at all. That said, this authority is not unlimited.
An employer cannot legally fire you specifically because you exercised your right to use sick leave under state or city law. One key legal question in a retaliation claim is whether the employee’s use of protected sick leave contributed to or influenced the employer’s decision to terminate the employee.
There are situations where an absence-related termination may be lawful:
- You exhausted all available sick leave and continued missing work without authorization.
- Your employer had a legitimate, pre-existing attendance policy applied consistently to all employees.
- The termination was based on documented performance issues unrelated to your sick leave use.
- You failed to follow the required notification or documentation procedures that your employer established.
Even in these situations, timing matters. A termination that happens the day after you call in sick raises serious questions, even if the employer offers another stated reason.
What About FMLA Protections?
Federal FMLA protections apply to qualifying employees in Brooklyn and can shield workers from termination during serious medical leave.
The federal Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid, job-protected leave per year for serious health conditions, among other qualifying reasons. Employees generally are eligible for FMLA leave if they have worked for a covered employer with at least 50 employees, have worked for the employer for at least 12 months, have logged at least 1,250 hours during the previous 12 months, and work at a location where the employer employs at least 50 employees within a 75-mile radius.
Calling in sick for a single day may not trigger FMLA protections. But if your illness is part of a serious health condition, or if you have a chronic condition that causes intermittent absences, FMLA may apply. An employer who fires you while you are on protected FMLA leave, or in retaliation for taking it, may face significant liability under federal law.
What Should You Do If You Were Fired for Calling in Sick?
If you believe your termination was connected to using sick leave, there are concrete steps you should take right away.
Document everything. Save any texts, emails, or notices related to your termination. Note the timeline between when you called in sick and when the adverse action occurred. Gather any records of your sick leave use and any prior communications with your employer about your absences.
File a complaint if appropriate. The NYC Department of Consumer and Worker Protection handles ESSTA complaints. The New York State Department of Labor handles complaints under the state Paid Sick Leave Law. There are deadlines for filing, so acting quickly matters.
Speaking with an employment attorney can help you assess whether your employer crossed a legal line and what remedies may be available to you.
Speak With an Employment Attorney in Brooklyn
At The Law Office of Vincent Miletti, Esq., we work with employees throughout Brooklyn who have faced retaliation, wrongful termination, and other workplace violations. If you were fired or disciplined after calling in sick, we can help you evaluate your situation and understand your options under New York law.
To discuss your case, contact us or call us at 609-293-5928.
Last updated: June 2026
