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My Employer Questioned My Sick Time Off. Is This Legal?

sick leaveSick Time Off

Have you taken time off from work for illness and your employer is questioning your actions or requiring proof of an illness? There are instances in which this is legal and times when it is not permitted. The rules governing what your employer can and cannot do depend on the type of leave you requested and your company’s overall time-off policy.

What do you need to know?

Time Off with FMLA

When it comes to the Family and Medical Leave Act (FMLA), your actions and your employer’s actions are governed by federal law. When it comes to individual days of paid sick time, your company’s policies dictate the obligations of you and your employer.

In most cases, employers have a right to contact you and make certain requests regarding your time off under FMLA, but they cannot demand that you be in the office and cannot infringe on your rights guaranteed under federal law.

What determines how time off is handled?

FMLA rights are guaranteed to anyone working for a company with at least 50 employees who work at least 20 hours a week. The law provides for 12 weeks off for a personal health issue which can be related to you or a family member as long as you’ve worked at least 1250 hours.

To use FMLA time, you must notify your employer about your need to take time off. It is legal for your employer to request certification of your reason for time off and they can request updated certification every 30 days unless the original certification specified a specific period.

In addition to federal leave, New York law provides additional leave rights, including time off for military families, adoption, and more. Employees may also be entitled to temporary disability benefits when they are unable to work due to a disabling condition (including pregnancy). The state also passed a groundbreaking paid family leave law that began to be phased in last year.

Under the new law, employees are eligible to receive partial wage replacement while away from work for covered reasons. The wages are paid from a state insurance program that is funded by employee paycheck withholding. This law provides compensation as well as the right to time off work, with guaranteed reinstatement once you can return to work.

To be eligible, employees must have worked for at least 26 weeks for their employer to be eligible and request leave for one of the following reasons:

  • Caring for a new child
  • Caring for a seriously ill family member
  • Handling certain obligations arising from a family member's military deployment or service

The amount of leave and the amount of pay available is scheduled to gradually increase and include a guarantee of up to 12 weeks off with up to 67% of usual wages by 2021.

You can learn more about New York State’s Paid Family Leave Act here.

In all other cases where you are using paid sick days or time off provided under your specific employment agreement, you should refer to your employee handbook or union bargaining agreement regarding your rights and obligations. If this information is not readily available you can ask your human resources department for clarification. Your employer is required to follow whatever policies were outlined as part of your employment agreement, which can vary from location to location.

My Employer Contacted Me While I Was Away. Is that Legal?

In most cases, contact regarding work-related issues not linked to your reasons for being away is permitted.

For instance, your employer could contact you with a question about a client or the location of certain information while you are out of the office. This is usually true even while you are using FMLA. There’s usually only a problem with this type of contact if it happens excessively or requires significant levels of support on your part.

If you believe you are being asked to provide information or conduct tasks that violates the FMLA law, New York laws, or your company’s pre-ordained policies, you do have a right to refuse the request. This includes providing information about your reasons for being away from your job. And if you are disciplined for your response to an illegal request, you have a right to file a complaint or take legal action.

The bottom line? Your employer has some right to question sick time, but only under certain circumstances. Understanding your rights and responsibilities can help you determine if a line has been crossed.

If you have questions about time-off policies in your workplace or you need assistance with an issue related to FMLA, we can help. Contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.

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