Dear Boss: I’m sick. Please Don’t Pay Me. Sincerely…
by Tal Burnovski Yeyni
This may not be the best time of year to talk about sick leave. The days are longer. The sun is shining. The weather is hotter. And, workplaces… well, they don’t really change by the season. So maybe it is appropriate to talk about sick leave!
We have lately received more employer questions regarding their employees’ requests to defer sick leave to another time. Meaning, an employee is out sick, but does not want to use the sick leave balance to get paid for the time off. Which begs the question:
Can California employers require employees to use their sick leave balance?
The law states “An employee can determine how much paid sick leave he or she needs to use” (Labor Code § 246(k)). But does that mean an employee also has a right to waive sick leave pay or defer it? Being a relatively new law, employers have very little guidance on sick leave matters.
A review of the legislative history indicates the purpose of the law is not to penalize employees for being sick. Stated differently, the law was enacted to benefit employees by allowing them to stay home with pay while caring for themselves or family members.
One would argue the use of sick leave is the employee’s right, and therefore, only the employee may decide whether to exercise that right or defer it to another time. On the other hand, a waiver may defeat the purpose of the legislation which is to make employees “whole“ at time of sickness. The latter argument was also expressed to a certain degree in the recent Dynamex decision (which we wrote about here).
In Dynamex, the Supreme Court opined that allowing workers to waive employee (wage and hour) protections may displace those employees who want or need those same protections. See Dynamex Operations West, Inc. v. Superior Court 2018 WL 1999120 in page 71. Although the court’s decision discussed misclassification of independent contractors, its reasoning regarding waiving wage and hour protections may also be applied to other benefits.
On the surface, it might appear that employees should not be able to knowingly waive their rights. However, employers should be mindful that sick leave rules may be subject to future interpretations.
As always, employers with questions regarding state and local employment law compliance are advised to contact an employment defense attorney.
Tal Burnovski Yeyni is an attorney in our Employment Practice Group.