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In the United States, the Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid sick leaves for certain medical situations involving the employee or the employee’s immediate family member. Such FMLA leave applies to employees who have worked with the same employer for at least 1250 hours in the preceding 12 months, and at a location where the company employs at least 50 employees within 75 miles.
Neither FMLA nor any other federal law requires employers to provide paid sick leave to employees. Many employers however, pay employees for a part or all of this 12 week sick leave period, and others allow employees to cash unutilized sick leave, as part of company benefits.
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The FMLA makes it unlawful for any employer to deny leave or other benefits provided by the act, or to discriminate against any employee for taking FMLA leave or opposing any practice made unlawful by the FMLA. The approval of sick leave, especially non-emergency medical, dental, or optical purposes however, remain at the discretion of the company, regardless of whether the employee provides valid reasons or acceptable medical documentation. The duration of the leave depends on the severity of the condition, and the assessment of severity again depends on managerial discretion. Employers can impose any restriction or condition to FMLA leave, and can discipline employees who fail to adhere to such conditions, provided such conditions do not diminish the employees' FMLA rights.
The major sick leave discrimination issue is contextual approval. Approving the sick leave application for one employee and rejecting the sick leave application for another employee, is apparently discrimination, even when the reasons for the leave and the context may differ.
The FMLA allows employees to take sick leave for serious health conditions that makes them unable to work; birth and care of a newborn child of the employee; caring for a spouse, son, daughter, or parent with a serious health condition; and some other conditions. Companies looking to avoid discrimination charges need to draw up a comprehensive leave policy and make explicit the specific medical and non-medical conditions that become eligible for sick leave, and the number of days of leave entitled for each such condition. The leave policy also needs to specify the nature of documentation required, such as medical certifications, bills, or any other proof for each such condition.
At times, companies may deny sick leave requests to employees owing to business needs. A comprehensive leave policy specifies the nature of demands that may make the company reject sick leave requests, even when the employee may be otherwise entitled to such leave.
The leave policy also needs to include other clauses and conditions related to the leave. The FMLA, for instance requires employees to provide 30 days advance notice before taking sick leave, whenever possible, and incorporation of such clauses in the leave policy makes it a comprehensive whole and a one-point reference point for managers when processing leave applications.
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A comprehensive leave policy is not the solution, but rather means to a solution. The key to avoid sick leave discrimination charges are to apply the policy consistently across all employees. If the terms and nature of approval differ among certain categories of employees, make sure such differences are mentioned in the policy. In the rare cases when offering exceptions from the stated policy become inevitable for humanitarian or other considerations, document the specific reasons for the exemption, and convey in no uncertain terms that such a waiver is an one-off instance.
To prevent employees from misusing sick leave, companies may require employees to provide a medical certificate and specific information from the doctor on the date when the condition started, estimated duration of the condition, required treatment and other details, and process leave applications accordingly. The company may also ask for a second or even third opinion. Make sure to stipulate such requirements across the board and take decisions consistently. For instance, requiring one employee to ask for a second opinion when approving another employee’s leave on one doctor’s opinion may be discrimination, but requiring a second opinion if the first report is vague or incomplete, when the policy normally requires only one doctors report, is not discrimination.
Make sure the policy has a clause that allows the employer to update the policy as required, and transmit a copy to all employees whenever updates or revisions take place.
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It is not enough to apply rules consistently. The organization also needs to be seen and perceived as doing so; the solution is transparency. Provide detailed and specific reasons when denying leave approvals. In instances where denial of sick leave has to do with needs that may or may not find place in the leave policy, make sure to document the need in detail, preferably with proof, communicate the same to the employee, and update the policy.
Allow employees and supervisors access to the relevant portions of the leave management software to keep track of leave. Better still, allow employees access to all sick leave approval and rejection logs in report form. Such reports would make explicit the company’s efforts in applying the leave policy consistently, and also prove the company’s case if the matter reaches court.
Finally, be reasonable regardless of the policies in place. For instance, an employer approving a 12 day sick leave for a common cold or flu raises strong suspicions of favoritism, and approving only three days of sick leave for a bypass surgery may be a clear case of discrimination or victimization, even when the policy allows for both such cases.
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United States Department of Labor. “Sick Leave."http://www.dol.gov/dol/topic/workhours/sickleave.htm
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