Q. Can an employer change the sick leave policy for sick leave that an employee has earned but has not yet used?
A. Sick leave continues to be a sensitive topic for employers and employees. This employee benefit was initially designed to provide pay for employees who could not come to work based on illness. At the time, (and to this day for many employees) if you were not healthy enough to come to work, and you chose to stay out, you are not paid for that day of employment. Offering paid sick time started to evolve for good and bad. People took sick leave when they were not sick; employers encouraged people not to take sick leave by buying back unused sick time so that work could run smoothly. Some employers allow people to accrue sick leave over multiple years, while others allow people to pool their sick leave and give it to employees facing serious illness and financial distress.
A key phrase in your question can help an employee determine this answer by reviewing her employee handbook. Is sick time considered “earned time”? Most often the answer is, “It depends”. Sick time can be accrued, but it is not vacation time. Vacation time is considered earned time, at least in Massachusetts. According to Attorney Dave Wilson, at Boston based Hirsch Roberts Weinstein, “with vacation pay, the Massachusetts Attorney General’s office views accrued, but unused vacation days as ‘wages earned’ and those cannot be taken away once they are earned”.
When it comes to benefits and compensation of any sort, employers are advised to put the policy in writing, and employees are advised to ask clarifying questions to refine their understanding of the policy. Attorney Wilson suggests that employers craft well drafted employee handbooks, which explain the status and terms of benefits. He shares language from their model handbook, as follows:
“The Company may alter or amend the policies and provisions contained in this handbook at any time, at its discretion. As changes occur, we will let you know.
This handbook has been written to provide guidance and to help you get to know more about the Company. Brief outlines of the benefits, salary plan, rules and regulations, etc., are contained for review. For more detailed information on any of these subjects contact the Human Resources Manager. This handbook is not a contract. The benefits, policies, and procedures outlined in this handbook are subject to change at any time, at the sole discretion of the company. This handbook does not make any enforceable promises or guarantees.”
Attorney Wilson also offer this language as it relates to sick time:
“The Company does not expect ill employees to come to work to the detriment of their health and the health of fellow employees. On the other hand, it is expected that all sick leave under this policy will be for actual illness and for that purpose only. Sick leave is not considered earned time, and may not be accumulated from year to year.”
Depending on the written policy of your employer, you may find that sick leave time can be changed after it has been accrued because it is not considered earned time. However, in 2008 in MA an employee won a lawsuit that alleged breach of an employment contract. In this example, the employer's promises for benefits including sick time, contained in various versions of its employment manual, were breached when the employer refused to compensate the employee upon retirement.
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