A Pattern of Sick Leave Abuse: “I Know It When I See It.”

A Pattern of Sick Leave Abuse: “I Know It When I See It.”

Michael SoltisCompliance, DMEC News, Resources

Tropical vacation

Now that summer is upon us, at least some employees—a small percent, no doubt—may be thinking about how to turn those half day Fridays off into full day Fridays off, or turning two day weekends into three day weekends. For employees lacking the creativity to develop their own strategies, the internet offers much guidance, such as the recently published piece entitled “the best and worst excuses for calling in sick on those summer Fridays.”

By July 4, more than a few managers will be frustrated with those employees missing in action on Fridays and will be bringing their woes to the human resources department, proclaiming that such employee(s) is engaging in “a pattern of sick leave abuse.” After the required disclaimers about protected leave under the FMLA, ADA and paid sick leave laws, the conversation will likely turn to this question: what is a “a pattern of sick leave abuse” anyway?

Very few attempts have been made to define this all-too-common phenomenon. Two paid sick leave ordinances give some guidance. The Portland, OR Protected Sick Time Ordinance defines it as “repeated use of unscheduled sick time on or adjacent to weekends, holidays, vacation, or pay day, regardless of the number of consecutive days.”   Calling out sick on summer Fridays would likely meet that definition, at least after the “repeatedly” requirement has been satisfied, perhaps by August 1.

The San Francisco Paid Sick Leave Ordinance defines a “pattern of suspected abuse” by providing examples such as an absence when an employee’s vacation request was denied; when an employee is scheduled for an undesirable shift; and on  Mondays or Fridays or days following a holiday. Calling out sick on summer Fridays would likely meet this definition for a couple of reasons, including that being scheduled for summer Fridays may be considered an “undesirable shift.”

I suspect every employer would have additional suggestions to include in the definition,  the suggestions no doubt a result of having engaged with a master sick time abuser. But such a definition would be too long and inevitably omit something. Perhaps “a pattern of sick time abuse” can best be defined with the same words used by former Supreme Court Justice Potter Stewart in a 1964 decision  describing pornography: “I would know it when I see it.”

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