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Your Rights Am I Entitled To Sick Leave?

This page provides answers to the following questions:

1. Is my employer required to give me sick leave?

2. Is my employer required to pay me for sick leave?

3. Does the law require that I be paid for unused accrued sick time when I leave my job?

4. Who can take leave under the Family and Medical Leave Act?

5. Who can take leave as a reasonable accommodation for their disability?

6. Is my employer required by law to offer pregnancy leave?

1. Is my employer required to give me sick leave?

Contrary to popular belief, there is no general legal requirement that employers give employees sick leave. While most employers do in fact give employees some paid time off each year to be used for sick leave, the law does not require employers to do so in most circumstances.

Under some circumstances, however, the law does require employers to permit employees to take unpaid time off from work for illness, without negative consequences for the employees. Leave from work may be required by the Family and Medical Leave Act or to accommodate a disability; both are discussed below. In the case of pregnancy, an employer cannot deny leave to an employee for a pregnancy-related condition if the employer gives leave to employees for other temporary disabilities.

2. Is my employer required to pay me for sick leave?

Since there is no requirement under federal law that employees be given sick leave, there also is no legal requirement that sick leave, if given by an employer, be paid leave. But if an employer does not treat employees consistently when they take leave (for example, one employee gets paid when she misses work because of a cold while others are not paid when they miss work for minor illnesses), that employer may risk discrimination claims brought by employees who use evidence of this different treatment to show they have been discriminated against.

An employer who does provide paid sick leave is allowed under law to take reasonable actions to ensure that the leave is used for its intended purpose and not as a means to obtain additional vacation time. For example, your employer may require you to call in each day you are ill, or require a doctor's note for serious illnesses. Your employer may also monitor patterns of sick leave use, for example to identify employees who consistently take sick time at the beginning or end of the week (to have longer weekends) or at the end of each year (to avoid losing accrued sick time). Employees who abuse sick leave policies run the risk of discipline or termination.

3. Does the law require that I be paid for unused accrued sick time when I leave my job?

Unless required to do so under an employment contract, collective bargaining agreement, or other legally binding agreement, an employer is not required to pay employees for accrued sick time when they leave their employment. In this respect, accrued sick time is unlike accrued vacation time which, in some states, must be paid as part of an employee's final paycheck.

Some employers do pay employees for unused sick time, possibly as an incentive for employees to not misuse sick leave. However, this practice is generally completely voluntary, unless required by a contract as discussed above.

4. Who can take leave under the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) requires companies with 50 or more employees (working within a 75-mile radius) to allow an employee to take unpaid time off of work because of the birth or adoption of a child, the employee's own “serious health condition,” or the need to care for a seriously ill child, spouse or parent.

What is a “serious health condition” for purposes of the FMLA? Unfortunately, this is not well defined under the law. Illnesses such as upset stomach, common cold, or non-migraine headaches may not qualify. If the medical condition requires hospitalization or requires bed rest under the supervision and care of a physician for more than three calendar days, the condition will most likely be considered a serious medical condition.

Under the FMLA, you can use accrued paid sick leave instead of unpaid FMLA leave if the reason for the leave is covered by your employer's sick leave policy. For example, you will almost always be able to substitute accrued sick leave for your own serious health condition, since that is the purpose of sick leave. Using accrued sick leave to care for an ill family member will be allowed only if your employer's policy allows employees to use sick leave for that purpose.

For more information about the FMLA, see family/medical leave.

5. Who can take leave as a reasonable accommodation for their disability?

An employer can have attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

A uniformly applied leave policy does not violate the Americans with Disabilities Act (ADA) just because it has a more severe effect on an individual because of his or her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it under the ADA, unless it would impose an undue hardship. For more information about accommodation, see our page on disability discrimination.

An employee with a disability may also be eligible for leave under the Family & Medical Leave Act. For more information, see our page on family/medical leave.

6. Is my employer required by law to offer pregnancy leave?

It depends. With regard to the time a woman is unable to work because of a disability related to pregnancy or childbirth, the law requires only that an employer treat these disabilities the same way as other temporary disabilities. If employees are allowed to use leave (such as sick leave or short-term disability leave) when temporarily disabled by illnesses or injury (such as broken limbs, minor surgery, or the flu), then pregnant employees must be entitled to leave during the time they are similarly disabled.

Employers are not required to treat pregnancy more favorably than they treat other temporary disabilities, however. If an employer does not provide leave for temporary disabilities and temporarily disabled employees must take leave without pay, be docked for absences, or face termination after a certain number of absences, then pregnant employees may risk the same consequences for pregnancy-related absences.

The law also doesn't prohibit employment decisions based on an employee's conduct that may be caused by pregnancy. For example, an employer doesn't have to treat an employee who was late due to morning sickness any better than an employee who was equally late for a different health reason. For more information, see our page on pregnancy leave.

However, employers with 50 or more employees may be required to comply with the FMLA by allowing employees to take unpaid leave for pregnancy, childbirth, and bonding following the birth of a child.

This page was updated on January 12, 2006

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