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Taking a sick day when not sick

Q: Recently I had taken a day off. I used a sick day. We have six of them to use per calendar year. I considered it a mental health day. I did some errands and then met a friend for lunch. Two tables away, my manager was eating lunch with another person from our office and saw me. The next day I was fired for "abusing the sick time policy" that is written in the company handbook. Is this legal? I think everyone does this once in a while.

A: You learned a lesson the hard way. Sick days are typically not an entitlement. Instead they are there for employees to use for when suffering from a migraine or battling the flu.

It is legal to terminate you. You used a sick day and therefore, your employer assumed you were being truthful and were unable to work that day. A "mental health" day is really not a bona fide reason for taking a sick day. Most employees would take a vacation day or a personal day (if available through your company). You also were foolish enough to enjoy lunch at a restaurant which your manager frequents.


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I consulted Jeffrey Dretler, an employment attorney at Fisher & Phillips LLP to ask his opinion. He agreed that is was legal for your employer to terminate you. Dretler offers, "While it may be true that other employees abuse the sick time policy, and perhaps the Company is willing to look the other way most of the time, your manager may have felt constrained to enforce the policy when your violation of it was flagrant and witnessed by another employee as well. If your manager had not enforced the policy, it may have sent a message to other employees that sick days could be used as vacation days. The punishment for violating the policy does seem harsh, assuming this was a first offense, and the employer could have chosen to give you a warning and clarify to you, and others, the conditions under which sick time could be used, but it was not illegal to take a harsher approach. If you have reason to believe that all or part of the motivation behind the Company’s decision to terminate you was not your violation of the sick time policy, but your race, age, gender or membership in some other 'protected' category, and you can show that other employees who are not in the same protected category as you have abused the sick time policy and not been terminated, then that could be illegal, but since you did not mention that in your question I can only assume that is not the case."

Massachusetts employers are not required to offer employees offer sick days (paid or unpaid) to their employees. Sick days are a benefit that some employers choose to offer their employees. Many employers often provide employees with sick days so that employees who are really sick will not come to work and possibly infect others.

by Pattie Hunt Sinacole Thumbnail image for Thumbnail image for JobDoc-Pattie-Hunt-Sinacole-100.jpg


More from this blog on: Etiquette at Work , Office Issues , Salary and Benefits