Sick Relative and Sick Leave Benefits

Q: I recently had to take some sick days off to care for my brother who is suffering from HIV. I really don’t want to have to explain to HR why I am taking these days off. They keep asking my reason for taking the days off. I have said that a family member is very sick. They have asked which family member and to “please describe the nature of the illness.” Is this legal? Do I have to disclose? Very few people know about his illness and there is still a stigma associated with HIV whether we want to admit to it or not.

A: You are an incredibly supportive sibling. In order to take approved “sick time” (whether paid or unpaid) off from work, you need to provide your employer with enough information for your employer to determine that you are using the leave for the purposes intended. You are wise, however, to protect sensitive medical information.

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Jeff Dretler, an employment attorney from Fisher & Phillips, explains: “Under the new Massachusetts Earned Sick Time Law, effective July 1, 2015, most employees can use accrued sick time to care for an ‘immediate family member’ suffering from a ‘medical condition that requires home care, professional medical diagnosis or care, or preventative medical care.’ Under the law though, an immediate family member does not include a sibling which is why your employer needs more information about the familial relationship. Similarly, under the federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, an employee seeking time off to care for a seriously ill family member (which like Massachusetts law does not include siblings) must describe the type of care which the employee plans to provide for the family member.”

An employer may ask about the “nature of the illness” to better understand what benefits you may apply. Dretler further explains, “Relevant facts may include whether the patient is hospitalized, the type of care the patient will require, the expected duration of care, but need not necessarily include the diagnosis. In most circumstances, it will not be necessary for you to disclose to your employer the actual diagnosis of the person for whom you are caring (e.g., HIV). An employer who demands from the employee more information than is necessary, to determine the employee’s right to the leave, could very well be in violation of state or federal laws, including those which protect employee privacy.”

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I would recommend asking specifically what your employer is seeking. Is there a form that they could provide? Many physicians have navigated similar issues and have experience with sharing what is truly required. If you are further pressed for information, you may want to contact an attorney.

by Pattie Hunt Sinacole, First Beacon Group LLC

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