Employees on FMLA claim they’re owed more paid sick days
March 9, 2009 by Sam NarisiPosted in: Benefits Law, FMLA, In this week's e-newsletter, Latest News & Views
Many companies require employees to use paid sick time concurrently with FMLA leave. But if employees are disciplined based on how much sick time they use, does that discriminate against employees who’ve taken leave?
That’s what two employees claimed in one recent court case.
The employer gave all full-time employees 120 hours of sick time a year. Employees who exceeded that allotment were disciplined.
Two employees had each taken close to 120 hours of sick leave — plus, they had both taken time off for FMLA. So by the end of the year, they’d used more sick time than they were allowed and were suspended without pay.
They sued, claiming they were disciplined because they took FMLA.
The company’s response: Employees had the choice of whether they wanted to use paid sick leave while they were on FMLA. In this case, the employees chose to take the paid time.
Then, when they tried to take more sick days after that, they were punished.
Who won the case?
Answer: The company.
The employees chose to use sick leave when they took FMLA and continued to use sick time when they knew they’d run out. “In other words,” the judge said, “they want more paid sick time than other [employees] got.”
The court didn’t buy their argument and the case was thrown out.
Cite: Tucker v. County of Monmouth
Tags: FMLA, paid leave, sick days
March 9th, 2009 at 11:36 pm
[...] and advice from the intersection of tech and HR. HRTechNews.com – http://www.hrtechnews.com/ Employees on FMLA claim they’re owed more paid sick days … By Sam Narisi Many companies require employees to use paid sick time concurrently with FMLA leave. [...]
March 11th, 2009 at 11:46 am
I had a similar problem with an employee who was over her sick and vacation time and kept asking for more, last minute, time off. I scheduled a meeting with her and her managers and explained that she has been having major attendance issues and could she share with us what was going on. she said she had been having “personal” problems. She also said she attempted suicide before and was worried. She had also called from the emergency room one time and said that she has emotional problems.
I then told her that she really needed to take off some time and explained FMLA to her. She got very upset, ran from the room and so on….I said she needs to take some time off and get some help and did she want me to take her home. She flew out the door yelling things to me.
I said she can’t come back to work without a doctors note and something saying that she is able to work, or she needed to take FMLA. She said ok, then called in the nxet day and quit.
It appears that even when you offer an employee help they resent it. I’m just glad that I offered FMLA as it seems like I could have been in trouble if I didn’t offer it.
Any comments on that situation?
March 11th, 2009 at 1:47 pm
Beth, It sounds like you did all of the right things. I’m sure there is a part of you that is glad she quit, and another part of you that is extremely worried about her.
I don’t think in all cases employees will resent when you suggest (or demand) FMLA. But you have to do what is best for your company and employees as a whole.
March 11th, 2009 at 2:49 pm
Offering FMLA as an option was the right move.
At the point she started speaking of suicide, the other managers should leave the meeting for confidentiality.
There are so many possiblities of why she got upset and angry, it boggles the mind but I have seen a few key issues:
- Domestic abuse at home, work was her refuge and she did not know what to do.
- An addiction issue
- Personal legal issues
- Medical issues she did really need help for but could not cope and develop a plan for herself. This is a very sad issue when they can not get help nor will accept help.
Our real lives in HR are not always textbook.
March 11th, 2009 at 2:58 pm
Your example was built on a false premise. In the opening paragraph you said most companies require there employees to use sick leave when on FMLA. Then the determination was built on the fact that they had a choice.
So the question remains if the company requires that I use my sick leave while on FMLA and then I return to work catch the flue and take additional days of sick leave 1) should it be paid? 2) Should there be any discipline?
March 12th, 2009 at 7:59 am
I agree with Bill. We require employees to use sick days concurrent with FMLA. If they exhaust the sick days they’re required to use their vacation bank. What happens if they run out of paid time off and are sick later in the year when FMLA is over?
March 12th, 2009 at 9:38 am
What we would all need to answer the question accurately is Beth’s FMLA policy as written plus the Sick Pay and Attendance Policies. It could make a significant difference if the person is exempt or non-exempt.
In Beth’s specific case it is not evident she had been off on FMLA, and to me appears to have used all of her policy given vacation and personal time. After she used or requested more time taking disciplinary action would be in order.
My company does as does Lisa in requiring concurrent use of FMLA/PT/Vacation. If they have future absences due to illness not covered by FMLA, they work their way through our attendance policy.