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Does Your Sick Leave Policy Need a Check-Up?


December 27, 2013
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As we enter cold and flu season, employers should be sure that they understand their legal obligation to sick employees who cannot report to work. If you haven’t reviewed your policy in a while, it may be time for a check-up.

While New York and New Jersey employers were traditionally not required to offer paid sick leave, it is not unusual for employers to voluntarily provide some form of paid leave.  Further, societal attitudes and our laws are changing. As we have previously reported on this Business Law Blog, Jersey City recently passed a municipal ordinance mandating that private employers provide paid sick leave for all workers, including those who work part-time. Similar efforts are underway in New York City and elsewhere. As always, it is imperative to stay on top of your legal obligations.

Even when not required, many employers provide paid time-off under a sick leave policy. In such instances, one must remember that “no good deed goes unpunished.” In order to avoid potential legal headaches, it is important that the employer have clear procedures in place that are uniformly enforced. Below are a few tips:
  • Detail the procedures employees must use to notify their supervisors or other designated staff members that they will be out sick.
  • List the circumstances under which a medical verification (i.e., a doctor’s note) is required. Requests for such information must be made with care as this triggers disability discrimination issues and concerns.
  • Explain how sick time is accrued, including whether unused time will be paid out upon retirement, resignation, or termination.
  • Enforce attendance policies consistently. Allowing some employees but not other to “bend” the rules can lead to allegations of favoritism and even discrimination.
  • Track employee absences carefully. This is essential should you suspect that a worker is taking advantage of your sick leave policy, such as calling in every other Friday.
  • Be mindful of employment laws that may impact employee leave, such as the federal Family and Medical Leave Act, New Jersey’s Family Leave Act, the Americans With Disabilities Act and New Jersey’s Law Against Discrimination. While the common cold generally does not implicate these laws, more serious illnesses might.
  • Keep employee medical records separate from other personnel files to ensure compliance with the Health Insurance Portability and Accountability Act (HIPPA) and other privacy regulations.
If you have any questions about sick leave or would like to discuss your company’s employment policy, please contact me, Gary Young, or the Scarinci Hollenbeck attorney with whom you work.