Employee Sick Leave Usage and Employment Law
In the United States, most employers aren't required to provide workers with paid sick leave. Employers for about half of all American workers do provide some form of sick leave. Traditionally, employers give employees separate leave for illnesses and injuries.
Some employers allow employees to use sick leave to care for their sick children while others don't. Some employers lump together vacation, personal days, and sick leave into what is called paid time off which gives employees a certain amount of leave time to use for any reason. In addition to sick leave, some employers offer disability leave to employees who miss weeks or months of work for medical reasons.
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Exempt employees and sick leave
Generally, according to the Fair Labor Standards Act (FLSA) an employer may not make deductions from an exempt employee's pay based on absences. There are a few exceptions to that rule, the most significant of which is that a deduction may be made if (1) an employee misses a full day of work because of sickness or injury, (2) the employer has in place a "bona fide sick pay plan," and (3) the employee isn't entitled to paid leave for the absence either because he hasn't yet qualified for the leave or because he has used all his accrued leave.
Some states also have requirements about whether employers must pay out sick leave when a worker leaves employment and how that should be done.
State-by-state comparison of 50 employment laws in 50 states, including leave laws
Sick leave and federal, state, and local leave laws
Employers may be required to grant certain types of leave for employees who are sick or disabled. The federal Family and Medical Leave Act and many similar state laws provide for leave because of an employee's or her family member's serious health condition. It also allows employees to take up to 26 weeks of unpaid “military caregiver leave” to care for a family member who suffers from a serious illness or injury that was sustained on active duty in the military.
The Americans with Disabilities Act and similar state laws may require employee leave as a reasonable accommodation of a disability.
Employers also should check their state's workers' comp laws to determine what sort of employee leave is required.
Many employers offer separate paid leave for employees who miss work to give birth or adopt a child, such as maternity leave and paternity leave. Under Title VII of the Civil Rights Act of 1964, employers are required to provide the same leave benefits for women who are pregnant as for other employees with short-term disabilities.
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Paid sick leave requirements
Although paid sick leave isn't mandated nationally, the city of San Francisco requires all employers within its boundaries to provide paid sick leave. Several state legislatures and Congress also are considering similar measures. In May 2009, the Healthy Families Act of 2009 (H.R. 2460 and S.R. 1152), was introduced in the U.S. House of Representatives and the U.S. Senate. The bill, which is largely the same as bills proposed in prior sessions of Congress, would require employers with more than 15 employees to provide workers with up to 56 hours of paid sick leave each year. Experts expect for the bill to have greater support than in past years.
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Other sick leave issues
The U.S. Department of Labor's (DOL) regulations require every employer to provide employees with a written or posted description of employment practices and policies for paid vacations, holidays, sick leave, bonuses, severance pay, personal days, payment of employee expenses, pensions, and all other fringe benefits.
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Related articles on the Sick Leave and Employment Law featured in HR Hero Line and Employment Law Post
- Will Congress Require Paid Sick Days for Flu?
(Human Resources News, November 2009)
- From Swine Flu to Bad Attitudes: How to Fight Employee Presenteeism
(HR Hero White Papers, November 2009)
- Pandemics and H1N1 Influenza Policy
(HR Hero White Papers, October 2009)
- H1N1 Swine Flu Information and Resources for Employers
(Human Resources News, October 2009)
- Employees Have a Duty to Reveal Serious Health Conditions under FMLA
(Missouri Employment Law Letter, October 2009)
- What to Do When Contagious Illnesses Comes to Work
(Mississippi Employment Law Letter, September 2009)
- OPM Issues Proposed Regs for FMLA, Other Types of Leave
(Human Resources News, August 2009)
- Paid Sick Leave May Soon be Federally Required
(Delaware Employment Law Letter, July 2009)
- Obama Extends Benefits to Same-Sex Partners of Federal Employees
(Human Resources News, June 2009)
- Sick Employees and Crisis Management
(Human Resources News, May 2009)
- Employers Should Be Prepared in Case Swine Flu Strikes
(HR Hero Line, May 2009)
- To Be Sick or Not To Be Sick
(The Word on Employment Law, May 2009)
- Absenteeism, Presenteeism, and Keeping the Workplace - and Workers - Healthy
(Arizona Employment Law Letter, April 2009)
- Are Your Policies Compliant with the New FMLA Regulations?
(Texas Employment Law Letter, February 2009
- Obama Will Bring Change for Employers
(New York Employment Law Letter, January 2009)
- FMLA Leave for Military Family Members
(HR Hot Topics, November 2008 )
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