Sick Time – Who Pays?

Q. My boss has recently started telling employees that no one can call in sick without a doctor’s note. My employer does not offer insurance so I have absolutely no coverage and make too much for Mass Health. I cannot afford to pay for a doctor’s visit just to get a note. I very rarely call in sick, and I do not get paid sick days or vacation time. Can she legally fire me for calling in without a doctor’s note for one missed day?

A. Employers who are frustrated with some employees’ bad behavior often resort to broad statements to deal with all employees, which is not an effective management strategy. Employers want employees to show up for work, which is a reasonable expectation. And people do get sick, which needs to be understood, and accommodated at work. Employers want to prevent abuse of unplanned time off, which has a negative impact on the organization and the work which needs to be completed.

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This practice does seem extreme, yet it is an enforceable practice, which can put your job at risk should you not comply. When managers create “rules” that are difficult for good employees to follow, I encourage people to talk to the manager in a non-confrontational manner, just as you did by asking your question. If the manager can’t provide a reasonable answer, you should take your concern to human resources, and ask them to explain the new policy, explain your concerns about the cost of getting a doctor’s note, and the fact that your record shows you do not abuse sick time.

A small number of sick days can be a nuisance for an employer, while recurring sick time is a challenge to any manager and organization. The need for sick time by employees with recurring illness is real. To further understand the issues relating to sick time, I consulted Attorney David Conforto of the Conforto Law Group based in Boston. “The practice of requiring a doctor’s note as a condition of taking a sick day may violate the Family and Medical Leave Act (FMLA). Any sick days that you take will trigger protection under FMLA if the time off in question is needed because of a serious medical condition. For FMLA to apply the employee must have worked at least 1,250 hours in the preceding 12 month period and the company must employ at least 50 workers within 75 miles. Under FMLA, employees are entitled to 12 weeks off per year, which can be taken on an intermittent basis”.

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Attorney Conforto notes that “Those who suffer from autoimmune ailments like Crohn’s disease or lupus, for instance, sometimes experience flare-ups necessitating the need to take sick time. If you suffer from a serious health condition, which from time-to-time forces you to miss work, it is advisable to complete FMLA certification documentation so that any sick days caused by your medical condition will trigger FMLA protection.”

Under FMLA, the employer may request documentation from your treating physician re-certifying your eligibility for FMLA leave which man only occur every 30 days. Unless there are significant changes in your condition, your physician can complete the re-certification without a formal visit. A request for a doctor’s note following an absence would likely be considered a request for re-certification. The employee must have at least 15 calendar days to respond to the request unless it is impracticable to do so.
Many doctor’s will provide a note regarding illness for a regular patient without charging for an office visit. The increase in health care costs may end up eliminating this practice if more employers require documentation. 60 % of employers currently provide paid sick time, with employees in the service industry being least likely to have paid sick time. Some states are now introducing legislation to require some amount of paid sick time for employees.

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