Employment Laws on Absence Due to Sickness

Illness may force employees to miss work, sometimes for a day or two and sometimes for a more extended period. Employment and labor laws give employees certain protections when they need to miss work because of an illness. However, the laws guarantee employees the right to miss work only in some circumstances. In other instances, they may face repercussions from their employer.

Paid Leave

Federal and state labor laws do not require paid sick leave. Nonetheless, paid sick time is a common perk for many employees. In March 2009, 61 percent of employees in the private sector had paid sick leave available as part of a company benefits package, according to the United States Bureau of Labor Statistics. Employees have the right to miss work for as many sick days as the employer's policy allows per year, although employers may attach certain conditions to employees' sick leave. Theoretically, for example, an employer may require a doctor's note before allowing an employee to return to work after a relatively long absence.

Unpaid Leave

A federal law allows employees to take off a block of time from work for several reasons, one of which is to deal with a serious illness. The Family and Medical Leave Act gives employees up to 12 weeks of unpaid leave per year and allows them to return to their job or an equivalent position. Employers must allow FMLA leave if they have at least 50 employees for at least 20 weeks of the current year or the year prior. Employees of covered employers must have the right to take FMLA leave if they have worked 1,250 hours within the last year and have been with the employer for 12 months or more. For employees to take FMLA leave to cope with an illness, the illness must qualify as a "serious health condition" as defined by the law. Employees who miss more than 12 weeks do not have a guarantee of being able to return to their job.

State Leave

Some states' and other local governments' leave laws expand on the rights of the Family and Medical Leave Act. In Washington, D.C., an employee may take 16 weeks of family leave and 16 weeks of leave to deal with the employee's own serious health problem within a two-year period. Connecticut, Maine and Minnesota allow employees to take leave to donate an organ or bone marrow. In California, Washington and New Jersey, employees may have the right to paid or partially paid leave time if their employer does not offer it in a benefits package.

Additional Considerations

Employers should not simply let federal and state laws concerning sick leave -- or the lack of such laws -- dictate what happens when employees miss time because of a sickness. A written policy is essential to ensure consistency. Terminating employees who miss work because of an illness may lead to employee lawsuits if, for example, terminated workers can claim the employer discriminated against them by retaining other employees who missed similar amounts of time.

References

• U.S. Bureau of Labor Statistics; Paid Sick Leave in the United States; March 2010
• Encyclopedia.com; Sick Leave and Personal Days; 2007
• U.S. Department of Labor: The Family and Medical Leave Act of 1993
• National Conference of State Legislatures; State Family and Medical Leave Laws that Differ from the Federal FMLA; September 2008

Resources

• The Family and Medical Leave Act (FMLA)