As business and education lawyers, we occasionally hear from clients that before a holiday break, holiday weekend or National holiday and throughout the summer in particular, from time to time, there appears to be a spike in employees taking sick days or wanting to leave early on Friday afternoons
(note: this should be distinguished from true “Summer Fridays” policies that some companies maintain, allowing employees some flexibility (usually on rotating schedules) to leave early or take certain Fridays off). This frustrates management as it may reduce the number of staff available around holiday times and on Mondays and Fridays throughout the summer months and create a level of skepticism about employees’ truthfulness and dedication, and frustrates colleagues who “play by the rules” and respect and don’t abuse the sick days they receive by “confusing” them for vacation/personal time off.
How does an employer curb this “Long Weekend Sick Leave” behavior? Here are a few suggestions that are designed to provide clarity to employees up front, root out problems and address recurring issues with employees through lawful disciplinary means.
The Employee Manual: Setting the Tone & Defining the Law
A properly drafted employee handbook (which does not need to be 100 pages to be comprehensive and effective and can be substituted with memorandums before a company is sizable enough to require a full handbook) will both establish a company’s expectations for its employees on a variety of matters and also define applicable laws. With respect differentiating sick leave from vacation or personal days, it should be made clear in an employee handbook that there is a difference. With the passage of the New York City’s Earned Sick Time Act (the “Act”) that in 2013 and effective as of April 1, 2014, employers who used to group vacation, personal and sick days together as personal time off (PTO) typically no longer do so and rather give a bucket of sick days and bucket of personal/vacation days as employers of certain sizes are required to provide paid sick days and trust that their employees will request the proper type of time off. Also, the Act prohibits employers from asking employees who take less than three (3) consecutive sick days off for proof that they are in fact sick by way of a doctor’s note, explanation, etc., making the questioning of employees who take a sick day before or after a holiday, holiday weekend or summer weekend in some cases prohibited.
However, setting forth expectations in a handbook (or memorandum) may assist companies with curbing the unwanted, frustrating behavior of taking sick days when employees are not really sick. First, stating the obvious is helpful. While explaining that the company has the utmost in trust for the people it hires, reinforcing that the company expects its employees are truthful when requesting the appropriate “bucket” of time off should be stated. Second, while a company cannot outright prohibit employees from taking a sick day on a Monday or Friday or before or after a holiday or holiday weekend, it can reinforce expectations that if additional time off is desired at such times, employees plan in advance, save vacation days and use them for that purpose. Third, make it clear that disciplinary action may be taken for violations of these expectations and ensure that management follows through with discipline, in accordance with the employee handbook and the law.
Setting Number of Vacation, Personal and Sick Days
Two of the most frequent questions we receiving when assisting clients with offer letters, employment contracts and employee handbooks is “how many days off should we offer employees” and “are the number of days off we are proposing fair”. In the context of sick leave, for some employees a minimum has been established by the Act, so this question is raised less frequently, but questions regarding setting the number of vacation and personal days are routine. This short answer is there is no right answer. Companies of various shapes and sizes have different needs, different capabilities and financial resources that may drive their decisions in this area. Others may set policies based on their philosophies on a work-life balance. Yet others account for the seasonality of their business (e.g. retail) and strongly discourage vacation or personal time during the busy November and December holiday shopping seasons but provide for “bonus” time off in the slower parts of the year.
Ideally, employers should set policies that they believe match the market (which can be determined by asking around and reading publicly-available information), their philosophy and can be maintained financially and operationally. Policies should also be occasionally revisited to make sure what was set as a policy a year or two back still matches a company and the market’s current thinking and both company and employees are in alignment.
Establishing policies, reviewing and revising them occasionally or as needed and holding employees accountable for compliance with these policies provides companies and organizations the best opportunity for the Company to maintain meaningful policies that are respected by their employees for a harmonious, enjoyable summer for all.
