Sick Leave Still Bad For Business

Two years ago when Maine was considering mandating paid sick leave, I wrote that I thought it was bad for business. I continue to believe this. As I stated then, no one can argue that it makes sense for employees to stay home when not feeling well.  The last thing anyone wants is to have someone preparing or serving your meal who is not well—and that’s what happens when the choice is between staying home and not receiving pay or working sick because you can’t live without your paycheck.  It is a terrible choice to have to make.

Unfortunately, as noble as the various bills being proposed throughout the country may be, as right as it feels, it is bad policy because it undermines the businesses it purports to support and ultimately hurt all employees.  Small businesses cannot afford another mandate.  Mandatory sick leave will be cost prohibitive and an administrative nightmare to manage, particularly on top of the other leave policies mandated under state and federal law.  Managing time-off policies are not easy.  Employers still struggle making sense out of the federal Family and Medical Leave Act (FMLA) and that’s been around 20 years!

One can empathize with any worker who has to work ill.  Ideally, businesses will see that sick leave benefits, voluntarily offered, provide them a competitive advantage. But mandating it is not the right thing to do. Smaller organizations often cannot afford these kinds of benefits and another mandate could potentially put them under.

What do you think? Share your comments and opinions below.

Employee Medical Information: Be Careful What You Ask For

(This guest post was written by attorney Glenn Israel from Bernstein Shur)

Earlier this week, the national department store chain Dillard’s agreed to pay $2M to settle a discrimination claim based upon its policy of requiring absent employees to provide a doctor’s note stating the medical reason for the absence. The U.S. Equal Employment Opportunity Commission took the position that once a doctor confirms the employee was absent for medical reasons, the employer is not entitled to ask for any additional information. This is consistent with the approach taken by the U.S. Department of Labor with regard to Family and Medical Leave Act requests. The DOL medical certification form asks the doctor to state whether the employee has a medical condition that prevents the employee from performing one or more essential functions of his or her job and also asks the doctor to “describe other relevant medical facts” which “may include symptoms, diagnosis, or any regimen of continuing treatment.” The DOL form does not, however, require the doctor to provide any of that additional information.

In a recent case that I handled in Maine, an employer and a mid-level supervisor found themselves in front of the Maine Human Rights Commission for asking one too many questions. The supervisor noticed that one of his subordinates was acting strangely and asked the employee if she was “on drugs.” The employee said “No, but I do take medication.” The supervisor innocently asked “For what?” The employee then revealed her mental health diagnosis to the supervisor and filed a claim with the MHRC.

The take away point is don’t ask too many questions. Here are some things you can ask an employee:

Earned Benefit Time & Payout at Termination

Understanding an employer’s obligation regarding payout of vacation pay when an employee quits or is terminated can be very confusing, particularly when Paid Time Off (PTO) and Earned Benefit Time (EBT) is thrown in the mix. Each state has different laws, but we will focus in this post on Maine.

Maine does not require employers to provide paid vacation. However, if an employer offers it, any accrued and unused vacation pay must be paid out at the time of termination. But what happens if an employer combines vacation time, sick time, and other time off into either Earned Benefit Time or Paid Time Off? Again, the law is only concerned about the vacation time.

If you can separate the various time-off pieces, then the only obligation you would have is the vacation time. If, however, you cannot, you should look at the following:

1. What does your policy say?
2. What is your past practice? How have you handled it in the past?

If your policy and practice does not differentiate between the various time-off pieces and simply treats them all as “earned time,” then you have no obligation to payout at termination. Your accrual should also focus on the earned time without differentiating. And finally, you may also want to state that your “earned time has no value at separation.”

A well-written policy that includes these components and has been reviewed by counsel will minimize any confusion on how to handle this benefit at termination.

For addition assistance, contact the Dacri HR HelpLine by clicking here.

Sick Leave Bill Bad For Business

No one can be opposed to “An Act To Prevent the Spread of H1N1” unless you have to pay for it.  The bill before the Maine legislature (LD 1665) will provide employees paid sick leave. No one can argue that it makes sense for employees to stay home when not feeling well.  The last thing anyone wants is to have someone preparing or serving your meal who is not well—and that’s what happens when the choice is between staying home and not receiving pay or working sick because you can’t live without your paycheck.  It is a terrible choice to have to make.

Unfortunately, as noble as they bill may be, as right as it feels, it is bad policy because it undermines the businesses it purports to support and that ultimately hurts all employees.  Small businesses cannot afford this mandate.  This bill will also be an administrative nightmare to manage, particularly on top of the other leave policies mandated under state and federal law.  Managing time-off policies are not easy.  Employers still struggle making sense out of the federal Family and Medical Leave Act (FMLA) and that’s been around 18 years!  And to make matters worse, no other state has a paid leave policy like this proposed bill—putting Maine employers at another competitive disadvantage.

 One can empathize with any workers who has to work sick.  Unfortunately, the downside of this bill is much too great.  The timing is wrong and the bill is bad.  Maine should walk away from it now.