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Employer policies
  • When no legal requirement exists, employers may craft policies that cover employees absent from work due to illness.
  • Employers that believe an employee is abusing paid sick leave should take several steps to address the issue.
  • Termination should be a last resort.

In the absence of a legal requirement, sick leave may be offered (or not) at the employer's discretion. The employee's eligibility, accrual, and other conditions of use may be defined by company policy, as the employer deems appropriate.

Where sick leave is not required, unused time does not have to be paid out to departing employees. While employers commonly pay out unused vacation time, sick time is often “lost” when it hasn't been used.

If employees are allowed to carry over sick time from one year to the next, employers should establish a maximum accrual cap to avoid situations where employees earn unusually large amounts of sick leave (such as six months or more).

Even though a policy should establish the basic framework, situations may arise which have not been addressed by the policy. These might include:

  • Excessive absences or abuse of sick leave,
  • Expectations for providing a doctor's note,
  • Unusual situations such as a flu epidemic, and
  • Excessive absences or abuse of sick leave.

Some employees use every hour of sick leave provided, which leads employers to wonder if the employee is using the time as “bonus” vacation days. Other employees might call in sick, yet be seen out in public (or may call in sick after being denied vacation for a particular day). These situations must be addressed.

Termination may not be appropriate since each case is unique. Depending on a few considerations, other options may be preferable. These considerations include the employee's duration and record of service, as well as the understanding of company policy and expectations. If the expectations regarding use of sick leave have not been clearly communicated, then termination may not be the best option.

An immediate termination could result in a wrongful termination claim where the employee declares that the termination was in violation of company policy. The employer might then have the burden of showing that it was not merely “absences” but actual abuse of sick leave that resulted in termination.

Ideally, employers would start with a discussion about the intended use of sick leave (a similar discussion might be given to all employees). Explain that sick days are not “free” days off, and that employees are expected to refrain from using any sick leave, if possible. Employers might also explain the costs of sick leave (and the effect of those costs on raises or other benefits) and the burden which an absence places on coworkers.

In short, the fact that the company does not normally terminate until a certain number of absences does not prevent the company from determining that absences resulted from deliberate abuse of sick leave.

Explain that the employee has a perception problem — the pattern of absences creates the perception that the employee could have been working — and ask if the employee can explain the need for those absences.

For example, if the previous use of sick leave is questionable (over half the absences are Fridays, Mondays, days before or after holidays, days before or after vacation days) or if the employee seems to be “working the system” (taking sick days shortly after previously accumulated points have dropped from the record), then these issues can be pointed out, and termination would be easier to justify.

If employees show up while obviously sick, employers may always send them home and clarify that the absence will be excused because it was initiated by the company.

If termination is justified after considering these factors, including employee responses (i.e., if employees don’t volunteer any willingness to improve the situation) then employers could move forward with termination. The more evidence employers can provide that employees are abusing sick leave (using it as bonus vacation days) the better they’ll be able to refute any claims.

Where termination will be delayed, employers may still:

  • Put the employee “on notice” about the intended use of sick time,
  • Document the conversation and the perception of abuse (the employee does not have to acknowledge the abused sick leave, but should understand the impression the conduct has created), and
  • Inform the employee that any further use of sick leave will be closely scrutinized.

Hopefully, this discussion will help clarify the company’s position, and cause the employee to use greater care in the future. Then, if there are any further questionable absences, employers could use the next incident as justification for termination (and clarify, both in the discussion and the documentation, that further abuse of sick leave will not be tolerated).