The dispute related to a sick leave occurs in two dimensions:
- when the employee exceeds his or her allocated quota of sick leaves
- when the employer contents that the employee abuses the privileges while remaining within the allowed quota of sick leave.
The employer has the right to initiate disciplinary proceedings on any employee who exceeds his or her quota of sick leaves for the period. The law, however, does not allow the employer to establish a fixed amount or percentage of sick leave usage to trigger discipline. If the employer contents the employee abuses sick leave privileges, or has taken sick leaves without actually being sick, each case needs independent examination with consideration of all evidence and circumstances. A plausible evidence for employees abusing sick leave privileges is a pattern of availing sick leave in conjunction with a holiday.
Two legislations place restrictions on a company to discipline a frequently ill employee. These include the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
The FMLA that covers employers with 50 or more employees, and requires employers to provide up to 12 weeks of unpaid leave in a 12-month period for family and medical reasons. The ADA applies to employers with 15 or more employees and requires employers to provide reasonable accommodations to qualified individuals with disabilities unless such accommodations impose an undue hardship on the business. Reasonable accommodations may include part-time or modified work schedules and unpaid leave.
Both the FLMA and ADA prohibit the employer from taking an employee's FMLA or ADA covered leave into account when considering absences as "excessive" under the attendance policy.
FLMA however does not protect an employee from the consequences of their performance while working or require the employer to reduce the employee’s workload. As such, an employee failing to perform owing to taking too many sick leaves may still be subject to disciplinary action, including termination.
A new bill proposes to restrain employers from discharging, demoting, suspending, disciplining or discriminating against an employee who fail to report to work at the specified time owing to illness of the employee or the employee’s family member for up to five working days per employee within a 12 month period.
Image Credit: flickr.com/Wouter Kiel