Human Resource Blog

Sick Pay

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Our employer is in the process of restructuring and benefits are being eliminated (outside of what remains in the accrued bank per employee.) Can the employer legitimately take back the 5 days of sick leave  that was awarded in January 2008,  on February 1st?

There are almost no state or federal labor laws regarding sick pay. No state requires that companies pay workers for sick time. There are about 10 states that require companies to pay terminated workers for accrued vacation time. None requires employers to pay workers for accrued sick time, upon termination.

Even in California, which has the nation’s toughest labor laws, employees are not entitled to payment for accrued sick time on termination.

It is entirely up to the employer whether they want to offer this benefit — sick pay — or not. In this case, an employer who offered sick pay in the past has elected to stop offering it.

It sounds like in the past, this employer has awarded sick time to workers before they actually accrued it. All the year’s sick time for the year was awarded in January. In this case, the employer is being more than fair by allowing workers to keep sick time that they have accrued in the past, but rescinding or taking back the sick time that would have been earned in 2008.  

Unless there is a union contract in place that specifically requires sick pay, this is perfectly legal.

The intention of paid sick time is to compensate workers for income lost when they are genuinely too ill to come to work. Presumably, any worker who was genuinely ill between January 1 and February 1, and missed work, received sick pay.

By cancelling sick pay with little notice, the company avoids paying people who are simply using it as additional vacation days.

The employer has very wisely realized that if they tell all the employees “In 3 months you will lose your 5 days of paid sick time,” each and every employee will miraculously become sick and miss work for exactly 5 days before then.

Workers reason that they are “owed” sick time and they are entitled to it. However, companies offer sick days knowing that not every employee will need to use all of them, every year.

Nationwide, many workers use paid sick time as additional vacation days, or as “mental health” days when they just need a break from work. This is one of the reasons that many companies have changed over to PTO, or Paid Time Off, rather than vacation time and sick time. PTO allows workers to take time off for whatever reason, so they don’t have to pretend that they are sick when in actuality, they merely want a day off.