Sick-Time Pay Depends on Company Policy, Practice

Q After undergoing elective cosmetic facial surgery, I divulged the nature of the procedure to my employer. Even though I had a doctor’s order that I was to be off two weeks because of the risk of infection, my boss allowed me to take only one week of sick time. The rest was counted as vacation time.

I am an exempt employee in upper management, with way over 100 hours of sick time. Can my employer arbitrarily allow only one week of sick time despite my physician’s order?

The company said the decision was based on the fact that mine was “elective surgery.” My response was that all surgery is elective--it is always your choice to have it or not.

--M.S., Lake Forest

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A There is no law that requires employers to provide paid sick time for their employees.

However, if an employer has an internal policy in which it agrees to pay sick leave, its promises must be enforced and applied fairly. If your employer’s policy specifically allows only one week of sick time for “elective surgery,” then that may be all that you can get.

Review the company’s policy. Evaluate how it discusses sick time and elective surgery. It is possible that your employer’s written policy states that only one week of sick time is allowed for elective surgery and that employees are required to use vacation time for any excess time off.

You might have a claim if the company led you to believe you could use all your sick time and if it did not adequately explain the limitations of its policy regarding paid sick time.

You might also have an argument that the initial surgery was elective but that the possibilities of infection thereafter were beyond what you or your doctor may have anticipated initially and therefore were subject to your employer’s sick-leave requirements.

Emphasize the fact that you have not abused sick leave in the past. Try comparing yourself with other employees who consistently use all of their sick time. The company might be more lenient with you if it knows your record.

Determine whether the company’s policy provides incentives for employees who do not use sick time. Some companies award vacations days or pay to employees who do not use up their allotted paid sick leave.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Law Protects Pregnant Employees

Q I was hired as a temporary employee to fill in for someone on disability and then pregnancy leave. My employer considers me an asset to the business and would like to keep me as a permanent employee and terminate his former employee. She worked for the company five months and will be off four months.

Does the law regarding hiring and firing “at will” apply to this situation? Or would his former employee have legal recourse against him?

--J.T., Santa Barbara

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A Your question raises issues of disability and pregnancy discrimination.

The “at-will” doctrine is a completely separate legal theory that relates to whether an employer is required to have “cause” to terminate an employee. In theory, if an employee is truly “at will,” an employer can fire the employee without cause. However, the at-will theory does not exclude an employer from discrimination laws.

The situation you describe exposes your employer to a charge of pregnancy and/or disability discrimination. If your employer has at least five employees, it must give a female employee who is disabled by pregnancy or a related condition a leave of absence for the duration of the disability, up to four months. It must also reinstate her to the same or essentially the same position on her return from the leave.

There are limited exceptions to this reinstatement requirement that do not seem to apply to your situation.

The reinstatement might not be possible, for example, if the job has been eliminated for reasons unrelated to the leave. The company might also be able to claim that holding the job open or filling it with a temporary employee would substantially undermine the employer’s ability to operate the business efficiently and safely.

Unless an employer can establish that one of these exceptions is valid, it exposes itself to a pregnancy discrimination claim if it does not grant the employee a leave and reinstate her when she returns. The remedies for this type of discrimination include compensatory and punitive damages as well as attorneys’ fees.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker