Can I Fire Someone for Calling Out Too Much?

You know the feeling. The text arrives at 6:40 on a Thursday morning, the third one this month, and now you are rearranging the whole day, asking someone else to cover again, and quietly doing the math on how many times this has happened. Frustration with a chronically absent employee is one of the most common reasons founders start drafting a termination in their head, and the frustration is fair. Your business runs on people showing up. 

So here is the honest answer: yes, you can generally fire someone for excessive absences, and no, you should not do it until you can answer one question first. Why are they absent? Because the reason behind the callouts is what separates a clean termination from an expensive one.

The baseline: attendance is a legitimate requirement

Let's start with the reassurance. Reliable attendance is a real, defensible job requirement, and at-will employment means you can terminate an employee whose absences are hurting the business. Courts consistently treat showing up as an essential part of most jobs. If someone simply does not come to work, does not call, and does not have a protected reason, you are on solid ground, and plenty of terminations for attendance are exactly that simple.

The trouble is that a meaningful share of them are not, and the ones that are not tend to look identical from the outside. That is why the reason matters more than the count.

When the absences are legally protected

The Family and Medical Leave Act is the big one. If you have 50 or more employees within 75 miles and the employee has been with you at least a year and worked 1,250 hours, they may be entitled to up to 12 weeks of job-protected leave for their own serious health condition, a family member's, or a new child. 

Critically, FMLA leave can be intermittent, a day here and two days there for a chronic condition like migraines, or ongoing treatments, or a parent's dementia care. Those absences cannot be counted against the employee at all. If your attendance tracker assigns points for days that turn out to be FMLA-protected, and then you terminate based on those points, you have built your own retaliation case.

HR Tip: Employees do not have to say the words "FMLA" or "accommodation" to be protected. The moment someone mentions a medical reason, theirs or a family member's, even casually in a hallway conversation, you are considered on notice, and the obligation to explore whether the leave is protected shifts to you. So train yourself and your managers on one reflex: when an absence comes with a medical mention attached, the next step is a supportive question and a look at your obligations, not a point on the tracker.

When the reason is a disability

The Americans with Disabilities Act applies to employers with 15 or more employees, which catches far more small businesses than FMLA does. If the absences stem from a disability, you are required to engage in what the law calls the interactive process, a genuine back-and-forth about whether a reasonable accommodation would let the person do the job. Sometimes the accommodation is a modified schedule. Sometimes it is a period of unpaid leave itself, which courts have repeatedly recognized as a reasonable accommodation.

This does not mean unlimited absence is protected forever. Attendance can be an essential function, accommodations only have to be reasonable, and undue hardship on a small business is a real limit. But you have to have the conversation before you act, and you have to be able to show you had it. Skipping straight from frustration to termination is how employers lose ADA cases they might otherwise have won.

The state law layer most founders miss

Even if FMLA and the ADA do not reach you, your state probably does. A growing majority of states and many cities now have paid sick leave laws, and most of them do two things founders overlook: they cover much smaller employers, sometimes down to a single employee, and they prohibit disciplining anyone for using the sick time they have accrued. 

Beyond sick leave, many states run their own family and medical leave programs with broader coverage than FMLA, and various states protect absences for school activities, domestic violence situations, voting, and caring for sick family members. Before you count an absence against someone, it is worth knowing which of these apply where your people work.

If the absences are not protected, process still matters

Suppose you have checked all of that and the answer is genuinely just unreliability. You are allowed to act, and you will be in a far stronger position if three things are true.

First, you have a written attendance policy that says what is expected, how absences are reported, and what happens when the policy is broken.

Second, you have applied it consistently, because a policy enforced against one person and waived for another is evidence against you, not for you. 

Third, the termination is not the first time the employee is hearing there is a problem. Progressive discipline, a documented verbal conversation, then a written warning, then a final one, does two jobs at once. Legally, it creates a dated record showing the reason was attendance and the employee had every chance to fix it. Practically, it sometimes actually fixes it, which is cheaper than any termination.

HR Tip: Have the conversation at the third absence, not the thirtieth. Founders tend to tolerate silently, tolerate silently, and then explode, and that pattern hurts you twice. The employee can honestly say no one ever told them it was a problem, and your own records show months of acceptance right up until the sudden firing, which invites everyone to wonder what the real trigger was.

One honest look in the mirror

Before you finish the paperwork, ask one uncomfortable question: is it just this employee? If callouts are spiking across the team, the absences are data, not defiance. Chronic understaffing, chaotic scheduling, burnout, or a manager people are avoiding will all show up first as attendance problems. Firing your way through a symptom gets expensive, because the next hire inherits the same conditions.

If you are staring down an attendance problem right now and want to be sure your footing is solid, this is exactly what we help founders untangle. A Savvy HR review of your attendance policy and documentation will tell you whether your policy would hold up, whether these absences carry protections you have not spotted, and whether your paper trail supports the decision you are leaning toward. Better to know before the termination meeting than after the demand letter.

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