• Unless required by law, providing sick leave remains a matter for the employer to decide.
• Employees should be made aware that a doctor’s opinion is not a valid excuse for missing time from work.

The Fair Labor Standards Act (FLSA) does not require paid sick leave. However, state law may require sick leave, and some municipalities have adopted laws on sick leave. Other states may require that any sick leave provided must be made available for certain uses, such as caring for a sick family member (rather than being limited to personal use).

In the absence of a legal requirement, sick leave may or may not be offered 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.

While employers commonly pay out unused vacation time, sick time is often “lost” when it hasn’t been used. Even states that require payout of earned vacation time do not require payout of earned sick time.

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. For instance, an employee with many years of service could accumulate months of sick leave.

Even though a policy should establish the basic framework, situations may arise that 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, or
• Suspected 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 carefully.

Termination may not be appropriate since each case is unique. Considerations might include the employee’s duration and record of service, as well as the understanding of company policy and expectations. If an employer’s expectations regarding use of sick leave have not been clearly communicated, then termination may not be the best option.

If the employee has no prior write-ups for sick leave abuse, it might mean the employee has not previously been caught. There’s nothing inherently wrong with firing an employee for excessive absences. However, if a policy allows a certain number of sick days (through a point system, for example), this implies that employees won’t be subject to termination unless they exceed that number.

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

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

In short, the fact that the company does not normally terminate until a certain number of absences does not prevent it from terminating for abuse of sick leave. If employees show up while obviously sick, the employer can always send them home and clarify that the absence will be excused because it was initiated by the company.

Where termination will be delayed, an employer can still:

• Put the employee on notice about the intended use of sick time;
• Document the conversation and the employer’s perception of abuse (the employee does not have to acknowledge the suspected abuse, 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 employer’s position and cause the employee to use greater care in the future. Then, if there are any further questionable absences, the next incident could be used as justification for termination (with the employer clarifying, both in discussion and documentation, that further abuse of sick leave will not be tolerated).

Providing a doctor’s note

Most sick leave absences will not qualify under the Family and Medical Leave Act (FMLA) or similar state laws. However, many employees seem to believe that if a doctor tells them to take time off, the employer is obligated to excuse the absences. This is not the case.

An employee can be terminated for excessive absences (or for abuse of a leave policy), as long as those absences are not otherwise protected by the FMLA (or implicitly excused, such as leave granted to accommodate a disability or religious practice).

Employers should inform employees that a doctor’s opinion is not a valid excuse for missing work (unless it relates to other job-protected leave). In other words, employees should decide for themselves if they can safely and effectively report for work.

Another issue to keep in mind is whether a doctor’s note is necessary to verify that an absence was legitimate. An employee with the flu might not visit a doctor and won’t be able to provide a note. However, the employer may not want that person in the office potentially spreading the condition. Allowing the person to stay home may be in the company’s best interests.