Though sick leave is not required by federal law, administration
of sick leave policies may be affected by the requirements of other
established federal laws.
The federal Family and Medical Leave Act (FMLA), requires employers to provide up to 12 weeks of unpaid leave to
eligible employees for a variety of reasons related to family and
Generally, leave taken under the federal FMLA is unpaid.
However, employees may be eligible to receive money or pay while they
are on FMLA leave by substituting paid vacation, sick, personal, or
other paid leave time for unpaid FMLA leave time.
Concurrent use of sick leave during FMLA leave. The FMLA regulations require that if an employee chooses to substitute
accrued paid leave for FMLA leave, he or she may do so. If an employee
does not choose to substitute accrued paid leave, the employer may
require the employee to substitute accrued paid leave for unpaid FMLA
leave pursuant to the employer’s established policies for use of paid
The employer may require that an employee comply with
its established leave policies for use of paid leave, even if they
are more (or less) stringent than the FMLA’s rules.
Under the FMLA regulations, the employer has the right
to require, as a prerequisite to FMLA leave for a serious health condition,
that the employee provide a medical certification to substantiate
a serious health condition—even in cases where the employee is substituting
paid leave for unpaid FMLA leave. The FMLA regulations do not permit
employees to comply with a less stringent medical certification standard
under the employer’s sick leave plan when the employee substitutes
any form of paid leave for FMLA leave.
When an employee chooses, or an employer requires, substitution
of accrued paid leave, the employer must inform the employee that
the employee must satisfy any procedural requirements of the paid
leave policy only in connection with the receipt of such payment.
This notice is provided in the federal Form WH-381 (Eligibility and
Notice of Rights and Responsibilities).
If an employee does not comply with the additional requirements
in an employer’s paid leave policy, the employee is not entitled to
substitute accrued paid leave, but the employee remains entitled to
take unpaid FMLA leave.
Interaction with state laws. The
FMLA does not supersede state laws, which may provide greater leave
rights to employees.
Employers covered by both state sick leave laws and the
FMLA should carefully review the various provisions of both laws to
make sure that employees receive the more liberal leave benefits.
The Americans with Disabilities Act (ADA) states that allowing the use of accrued paid leave, or unpaid leave,
is a form of reasonable accommodation when necessitated by an employee's
An employer does not have to provide paid leave beyond
what is provided to similarly situated employees. However, employers
should allow an employee with a disability to exhaust accrued paid
leave first, then the employer should consider unpaid leave as an
No-fault attendance policies. No-fault
attendance policies are those under which employees are automatically
discharged after they have been on leave for a set period of time,
regardless of the reason for the absence.
Although no-fault policies are not, by themselves, a
violation of the ADA, an employer should be prepared to grant additional
unpaid leave if an employee is covered by the ADA (i.e., a qualified
individual with a disability) or the federal Family and
Medical Leave Act (FMLA).
According to the EEOC, if an employee with a disability
needs additional unpaid leave as a reasonable accommodation, the employer
must modify its no-fault leave policy to provide the employee with
the additional leave unless it can show that:
1. There is another effective accommodation that would
enable the person to perform the essential functions of his or her
2. Granting additional leave would cause an undue hardship.
The Genetic Information Nondiscrimination Act
of 2008 (GINA) prohibits employers from discriminating
against employees or applicants on the basis of genetic information
about employees, applicants, former employees, or their family members.
GINA applies to all public employers, private employers with 15 or
more employees, employment agencies, and labor organizations.
Under GINA, it is unlawful for an employer to request
or require genetic information about employees, applicants, former
employees, or their family members. Therefore, if an employer's sick
leave policy allows supervisors to ask workers about the nature of
the illness or injury before authorizing sick leave pay, or if a physician's
statement is necessary for sick leave (i.e., after 2 or 3 days' absence), employers
must consider GINA and the possibility that requiring such disclosure
or certification may violate the law.
Employers with such sick leave policies are advised to
include the GINA "safe harbor" statement in their policies and advise
employees of the GINA provision.
GINA safe harbor exception. Employers
do not violate GINA if their acquisition of genetic information is
inadvertent. To be covered by this exception, employers requesting
medical information from an individual or healthcare provider must
direct the individual or provider not to provide genetic information.
The regulations issued by the EEOC provide the following
model safe harbor language for employers to include with requests
for medical information:
The Genetic Information Nondiscrimination
Act of 2008 (GINA) prohibits employers and other entities covered
by GINA Title II from requesting or requiring genetic information
of employees or their family members. In order to comply with this
law, we are asking that you not provide any genetic information when
responding to this request for medical information. "Genetic information,"
as defined by GINA, includes an individual's family medical history,
the results of an individual's or family member's genetic tests, the
fact that an individual or an individual's family member sought or
received genetic services, and genetic information of a fetus carried
by an individual, or an individual's family member or an embryo lawfully
held by an individual or family member receiving assistive reproductive
The "watercooler" exception. Acquisition
of genetic information is also considered inadvertent if a manager
or supervisor learns genetic information about an employee by overhearing
a conversation between the employee and others or by receiving it
during casual conversation with the employee or others.
Note: The exception does not apply
if an employer follows up with "probing" questions, such as whether
other family members have the condition or whether the employee has
been tested for the condition.
Confidentiality. No matter how an
employer obtains genetic information, the information must be treated
as a confidential medical record and kept separate from personnel
files. Access to medical files should be strictly limited. Information
may be kept in the same files that an employer uses for confidential
medical information under the ADA as long as the ADA's confidentiality
requirements are met.
The EEOC has revised its employment law poster to reflect
GINA's requirements. The revised poster is available through EEOC's
website at http://www.eeoc.gov