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Employment Law: Am I Entitled To Paid Sick Leave?

Best Ohio Employment Discrimination Attorney Answer: Do you get paid on sick days? Is my employer required to pay me when I take sick leave? Can I get fired for taking too many sick days? Can salaried employees be deducted for sick days? Employment Law: Am I Entitled To Paid Sick Leave?

Ricolaaaa!
If you’re an Ohioan, or a Midwesterner, you probably have the Ricola cough drop
commercial memorized, whether you wanted to or not. In Ohio, flu season seems
like it lasts all year round. (See Ricola Cough Drop Commercial Youtube). Getting sick during cold and flu
season appears to be a natural consequence of living in Ohio. It doesn’t seem to
matter how good your immune system, how healthy your lifestyle is, or whether
or not you got your flu shot. Everywhere you look, you are surrounded by sick
people. Not to be too gross, but work is a major place where sicknesses fester
and get worse. Right now, your coworkers are probably coughing, hacking, and sneezing
without covering their mouth and no one is doing anything about it. There’s not
enough Purell in the world to fight all the germs at work. There is nothing
like watching a fellow employee sneeze into his hand that the touch all the
buttons on the copier.

You
might be wondering, if so many people are visibly that sick, then why do they
come into work? Don’t they care that they are most likely going to get other
people sick too? Why aren’t they at home resting? Growing up, I had a friend
who never missed a single day of school, from kindergarten all the way until her
senior year of high school. She refused to ever see a doctor or to admit she
was ill. Yet, she would come to school, cough all over us, and infect everyone
else. It was like being friends with Typhoid Mary or Patient Zero. The worst
part is that my school rewarded her for this kind of behavior. Each year, at
the awards ceremony, she would get an award for her perfect attendance. She got
an even bigger award her senior year, since she was the only student ever to
have come to school every single day for twelve years straight. I am also
assuming that she continued that same habit as an adult once she began working,
since it was rewarded so heavily before. I will admit it generally is a
positive thing to have a good work ethic and to try to avoid missing work. It’s
something that employers really seem to respect. But, when you are sick and
contagious, it’s not right to come to work and make everyone else sick too. The
last thing I would think employers would want is for their entire workforce to
be wiped out temporarily, due to one stubborn, sick employee.

So
maybe the answer to why so many people come into work sick is that they are
like my high school friend and want to be rewarded by the boss for their
impeccable attendance. But, I don’t really think that is the case. I think most
people come to work sick, because they don’t have a choice. They probably fear that
they will lose their job if they don’t come to work.

Not
everyone is fortunate enough to have paid sick leave. Thankfully, there are a
lot of private employers who are nice enough to grant their employees at least
a minimal amount of sick leave days. However, many employers do not allow their
employees to take any sick days at all. Currently, three in ten employees of
private employers do not have any paid sick days. (See nationalpartnership.org).

Since
sickness is seemingly so unavoidable, Nebraska’s state legislatures is trying
to help employees who wish to take sick days, but their job currently does not
permit them to. (See Bill
would require businesses to pay employees sick leave
). Nebraska legislatures have proposed LB 305, which
would grant one hour of sick leave for every 30 hours worked. Under the
proposed law, employees could receive up to 40 hours of paid sick leave a year.
While 40 hours probably seems like a lot to employees who currently do not have
any sick time, it also would not be a major of a burden for employers. As
Tiffany Seibert Joekel, a director at the Women’s Fund of Omaha said, “We’re
simply asking for five days in an entire year.”

What’s
interesting about the bill is that the sick leave would have a very broad
definition. Employees could use the days for whatever they wanted, even
personal, non-illness related reasons. For instance, sick days could be used
for bizarre situations like domestic abuse or avoiding a stalker. The bill
would also be wide sweeping, since it would reach almost every Nebraska
employer. The proposal states that the law would apply to businesses with four
or more employees. It would also include part-time employees, who work more
than 20 hours per week. However, not everyone in Nebraska is on board with the
new law. Some Nebraskan senators assert that employers might react negatively
to the new law and reduce staff members and other existing benefits.

It’s
important to note that the recently proposed Nebraska bill was not a new idea
created by the state of Nebraska. Rather, there have been twelve other states
and Washington D.C. who have already passed similar laws. There are even
counties and a few towns who have enacted paid sick leave legislation. (A
List of States and Cities with Paid Sick Leave Laws
).

You
may be wondering then, does Ohio have a paid sick leave law like this?
Currently, no, but the growing number of states and localities who are moving
towards requiring paid sick leave seems like a good sign. So far, Congress has
not enacted a paid sick leave law at the federal level. But fortunately, Ohio
employees with certain medical conditions still have protection under The
Family and Medical Leave Act of 1993
(“FMLA”).
FMLA leave is a little different from Nebraska’s proposed law however, because
FMLA is unpaid leave. So the answer to the question, “Do I get paid while on
FMLA?” is no – at least the law does not require your employer to do so. The FMLA grants employees up to 12
weeks of unpaid leave per year. The act only reaches medical conditions, so the
leave cannot just be for personal reasons like Nebraska’s proposed law. There
are also additional requirements under FMLA, including how long an employee has
worked for his or her employee, and the number of employees required is
different.

Do
I qualify for FMLA? Our FMLA
discrimination attorneys
have memorized the FMLA
requirements. To take FMLA leave, (1)
the employee has to have worked for at least 1250 hours in the
preceding year, (2) the employer must employ at least 50 employees within a 75
mile radius, and (3) the employees can only use the FMLA leave for their own
serious health condition or to care for a family member with a serious health
condition. What types of FMLA clams are there? There are two types of FMLA
claims employees can bring: FMLA interference (preventing an employee from
taking the leave) and FMLA retaliation (when an employer takes adverse action
against an employee for taking the leave). For more information about FMLA and
your current protections as employee with a serious illness, view our numerous
blogs. (See My
Job Doesn’t Have FMLA, Can I Get Medical Leave?
;
Can
I Be Fired For Asking About FMLA? I Need the Best FMLA Lawyer Help in Ohio!
;
Can
My Employer Block Me From Coming Back From FMLA Leave? I Need A Disability
Discrimination Lawyer!
).

Employment Law: Am I Entitled To Paid Sick Leave?

Well, what about salaried employees – Do salaried employees get
paid if they do not work when they are home sick? The Fair
Labor Standards Act
(“FLSA”), which protects
employees by requiring the payment of overtime and minimum
wage
, also offers a little protection for exempt employees who
take a sick day. As our wage and hour lawyers have blogged about before
FLSA provides an overtime pay exemption for certain employees, which most
commonly are the Professional, Administrative,
and Executive
exemptions, each of which requires a minimum wage of at least $455.00 a week
($23,660.00 a year), and a fact intensive inquiry into the actual job duties of
the employee. (See Are All Professionals Exempt From
Overtime Pay?
; What Is The Minimum Salary To Be Exempt
From Overtime Pay Requirements? I Need A Lawyer!
; Should I Be Paid Overtime Even If I
Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply
; Am I Entitled To Overtime? I Need A
Lawyer!
; and Top Wage and Hour Lawyer Reply: As A
Salaried Employee, Am I Exempt From Overtime Pay?
).
One key test for an employer to establish that an employee is exempt under the
FLSA is that such employee must be paid on a salary basis, which means that he
or she “regularly receives each pay period on a weekly, or less frequent basis,
a predetermined amount constituting all or part of the employee’s compensation,
which amount is not subject to reduction because of variations in the quality
or quantity of the work performed.” 29 C.F.R. 541.602(a).
The FLSA specifically precludes the employer from deducting wages for a sick or
disabled employee unless the deductions are made “in accordance with a bona
fide plan, policy or practice of providing compensation for loss of salary
occasioned by such sickness or disability.” If the there is an employer policy,
the employer still cannot deduct for parts of days as the FLSA allows only
deductions from salary to be made for absences of one or more full days
occasioned by sickness or disability Thus, if your job’s express plan provides
compensation for a certain number of absences, deductions for absences of one
or more full days because of sickness or disability “may be made before the
employee has qualified under the plan, policy or practice, and after the
employee has exhausted the leave allowance thereunder.” 29 C.F.R. 541.602(b)(2).
So, if you are a salaried employee (1) check to see if you meet the other
exemption requirements (don’t just trust your boss or manager to tell you if
you are exempt – many employers lie); and (2) look in your employee handbook to
see if there is a policy that applies. If there is no handbook or policy and
you are an exempt employee, if your employer does make a deduction for sick
days, you are no longer exempt and will be entitled to overtime pay for all
weekly hours worked over 40 hours at time and a half.

Even
though many employers are resistant to new legislation mandating paid sick
days, according to the National
Partnership For Women & Families
, it is actually to the employer’s advantage to allow
their employees to take paid sick days. The sick days allow workers to heal
faster, so they are being more productive at work and end up missing less days.
It can also assist with disease and illness prevention, because it lessens the
risks of people catching illnesses from each other and coming to work
contagious. Surprisingly, paid sick days can also help lower health care
insurance costs for employers. Therefore, paid sick leave legislation is really
a win-win for both employers and employees.

Even with the current state of the
law in Ohio, employees may still have a cause of action if the reason your
employer gives for firing you seems awfully suspicious. Your employer may claim
that he or she fired you for taking too many sick days. Please be aware that employers
may use sick days as a pretext to fire you, when they truly are firing you for
a hidden discriminatory reason. Pretext refers to giving a false reason to hide
the true illegal reason. (See Employment
Discrimination Question: What Is Pretext?
). Pretext
is something employees should always watch out for, especially when an employer
has never strictly enforced sick days or regularly allows other employees to
take sick days. Our employment attorneys are here to help you navigate through
Ohio’s existing anti-discrimination laws, FMLA, and paid sick leave. A common
cold should be prevent you from working at your dream job!

Employment Law: Am I Entitled To Paid Sick Leave?

If you feel that you are being denied leave rights under the
Family
Medical Leave Act (FMLA)
FLSA, or are being retaliated
against for taking medical leave, you should call the right attorney
as quickly as possible to schedule a free and confidential consultation.
The best option is not to wait. Call our Cincinnati, Cleveland, Columbus and Toledo
attorneys now. The Spitz Law Firm, and its
attorneys are experienced and dedicated to protecting disabled
employees’ rights under the FMLA, ADA and Ohio employment law
.