Sick Leave Policy: Can My Employer Get Away With This?

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Question

A nurse asks about the legality of a pair of sick leave practices -- requiring a nurse to "make up" a sick day, and requiring photographic proof of a sick child. Can employers get away with this?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

What Can Employers Require When a Nurse Calls in Sick?

A nurse wrote in to Medscape with 2 questions about sick leave. The first question is whether it is legal to make a nurse work on a subsequent day off during the same week after calling in sick. The concern is that a sick nurse should be recuperating, not coming in to work and exposing patients to illness.

The second question is about a nursing director who asked to see a photograph of a coworker's child after the nurse called in sick because her infant daughter was ill. This nurse brought in a written doctor's verification but was still required to supply photographic proof. Is this an appropriate response from a supervisor?

Scant Sick Leave Laws

Very little law exists to require employers to do anything or prohibit employers from doing anything with respect to paid sick leave. No federal law addresses paid sick leave. As of December 2013, Connecticut was the only state that requires private-sector employers to provide paid sick leave, and that law only applies to employers with more than 50 employees.^[1] A federal law, the Family and Medical Leave Act, gives certain employees unpaid leave for up to 12 weeks for certain medical situations involving the employee or a member of the employee's family.

Employers must pay hourly employees for time worked but need not pay for time employees are out sick. And employers don't have to pay for time off to take care of sick family members. However, most employers of healthcare workers do have a sick leave benefit -- they pay for a specified number of days or hours per month or year when the employee stays home sick or takes care of sick children. Employers can make their own policies about sick leave, such as how much is paid, how the sickness must be documented, and, in your case, whether a day taken for sick leave must be compensated for by working on a day off. The only thing employers can't do is enforce their sick leave policies in a manner that discriminates on the basis of race, sex, age, religion, or sexual orientation.

I suspect that there are several things going on in the situation described above. As we all know, some employees use up all of their sick time, and some employees work 30 years without ever taking a sick day. Perhaps your coworker has been calling in sick more than the average employee, and the director questioned the authenticity of the doctor's note. I agree that asking for a photo of the child seems both invasive and ineffective as a way of proving illness. But it is not illegal.

As for your employer wanting you to work on your day off after being sick, I wonder whether there is an underlying sense of distrust. For example, is the employer suspecting that you are combining a sick day and a scheduled day off to get yourself a mini-vacation? If that's the case, then the employee-supervisor relationship may need repair. Or maybe the place is simply short-staffed, in which case I'm sure it would be appreciated if you came in on your day off.

Because employers can make their own rules about sick leave, you most likely have no recourse to fight an employer's requirements or decisions. (If you are working under a union contract, there may be recourse.) If the employer has set rules on sick leave, then the employer should follow those rules. There is a large body of case law on whether "promises" with respect to benefits provided in employee handbooks can be enforced as contracts. Sometimes they can, and sometimes they can't. Usually it is not worth the employee's time and money to challenge the employer by taking the employer to court. And employers can change their policies at any time, without input from the employees.

In my experience, nurses seek work environments where, if they do their jobs, keep their promises, and look out for their employer's best interests, their employers will do the same in return. If you are doing your part but aren't getting respectful treatment in return, then it would be best for you to find another place to work. It's not a legal matter but a matter of career development.

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