Musings on Adding Balance to Paid Sick Leave Laws

PSL proponents recite the mantra that an employee should not have to choose between his or her health and a paycheck, suggesting that an employee who is sick should and would stay home from work rather than delivering “flu with your fries” to co-workers and customers.

While this suggestion is a very good sound bite, it is misleading. PSL laws give employees the right to take paid time off for many reasons, many having nothing to do with the employee’s health.  The suggestion also ignores what I have seen for decades, that master attendance abusers know very well the laws that give them the right not to come to work, often better than their employers, and play those laws to their advantage. Few employers have not had a memorable experience with an attendance abuser.

What balance can be added to PSL laws to make them more palatable to business? Here are a handful for legislators to consider:

thinker-1602201_1280Preventive Care: Require that an employee schedule healthcare visits for routine preventive care (e.g., teeth cleaning, physical examinations) at a time that is not “unduly disruptive” to the employer’s operation, subject to the healthcare provider’s requirements. Employees, especially part-time employees, should be encouraged to schedule healthcare appointments during non-work time. This concept is in the FMLA and seems to strike an appropriate balance.

Preventive Care for Adult Family Members. PSL laws give employees the right to use PSL to accompany a spouse, adult child, parent, sibling and grandparent, among others, to a health care visit for routine preventive care.  Is it an appropriate balance to allow an employee to take time off to accompany a spouse to have a routine dental checkup and cleaning? That situation is quite different than the need for an employee to take a non-adult child or an elderly parent who does not have transportation for routine preventive care. Accompanying a spouse or adult child for preventive care has nothing to do with choosing between the employee’s (or his/her family’s) health and a paycheck.  There is an opportunity for balance here.

Fraudulent Use of PSL.  Some employees call out sick when they are not sick. See my post concerning Super Bowl fever here. Every PSL law should Include a statement that fraudulent use of PSL is prohibited and may be grounds for discipline up to and including termination. A similar statement should also be on the government-issued notice that employers are required to post.  This, to me, seems beyond debate.

Special Treatment for Attendance Abusers. I have negotiated more labor contracts than I can count and have addressed attendance abuse at the bargaining table frequently. Early on, I learned that it is more palatable to include special provisions for “habitual offenders” than to tighten attendance rules for all. For an habitual offender’s absence to be excused, there were some additional hurdles. That concept should be incorporated into a PSL law. One option, for example, is that an employee who has received a written attendance warning within the past 12 months may be required to produce a healthcare provider’s note every time the employee uses PSL. Nearly all PSL laws require that an employee be out at least three days before an employer can require documentation of the need for the absence. This allows the abuser to take more time off, without the need to provide any justification.

Mandatory Sick Day.  Some employees come to work sick for a variety of reasons. One may be because they are saving their paid time off for another use.  With all of the laws protecting employees with a real or perceived disability, or a serious health condition, employers are often paralyzed when a sick employee comes to work.  Can the employer send the employee home? Must the employer allow the employee to deliver “flu with your fries”?  Including a statement in a PSL law assuring employers that they may send home an employee who reports to work sick would further promote the health of the employee, of co-workers and the public.

There are many opportunities to add balance to PSL laws.  With more balance, PSL laws may become more palatable.