Managing Paid Sick Leave Use/Abuse

 By Susan Breslauer, SPHR-CA, SHRM-SCP,

We’re receiving a number of inquiries from our clients regarding sick leave abuse and medical certification rules under the new Paid Sick Leave (PSL) law. Does the following dilemma sound familiar?  


Our Production team has had rampant abuse of the PSL lately.  The Production Manager thinks that his team may be under the impression that their sick leave banks granted on July 1, 2015 run out Jan 1st. So that, combined with the holidays, has them all calling in at the last minute or bailing half way through a shift (then being spotted at a bar watching a soccer game). For a department that runs 24 hours a day, this is a real problem.  Everything I’ve read online is all about all the protections for employees who use it and their rights.  What about protections for employers? Have any been developed since July 2015? 


Also, I know the law is silent on whether you can ask for a doctor’s note, and I’ve read that we cannot deny paid sick leave use for “lack of details”.  But our Production Manager would like to ask for doctor’s notes when someone calls in. 


We completely understand the frustration.  Unfortunately there has not been any relief or changes to the law since it was passed that make PSL more employer-friendly regarding doctor’s notes (aka medical certification).


The PSL law is unclear whether or not medical certification can be required, but the legal advice we’ve received (and our advice to clients) is that it is risky to require it.  Once PSL hours are exhausted, medical certification can be requested as long as it’s consistent with your policies and other legal requirements such as the Family and Medical Leave Act and Pregnancy Disability Leave laws.


If you’ve encountered a scenario like this one, perhaps some employee communication is in order so employees like the ones described above understand how PSL works and that they have until June 30, 2016 to use their frontloaded 24 hours or three (3) days, whichever is greater.  (This assumes the employer frontloaded 24 hours/3 days on July 1, 2015 and has a 12-month period from July 1, 2015 – June 30, 2016 and every July 1 – June 30 going forward.)


You could also think about offering some type of incentive for not using PSL.  Some of our clients have added a PSL provision to their policies which allows employees to roll their unused PSL into PTO (or vacation) at the end of the 12-month period as an incentive.  Food for thought….


If you have proof that sick leave is being abused, then you can deny the PSL and deal with the abuse or falsification of the sick absence.  In the case above, PSL could be denied because the employee did not go home sick…he went to a bar!  In similar situations when the sick reason is in question, we’d recommend speaking with the employee first and hearing his/her side of the story.  The above scenario is an example of obvious abuse that could be dealt with through denial of sick pay and taking disciplinary action.  Other situations might not be that crystal clear.


Give us a call if you feel you have an employee who is blatantly abusing your sick leave program. We’ll be happy to “think out loud” about the options and risks.



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