Oh, the Weather Outside is Frightful (I think I Need a Sick Day)!!

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

January 3, 2019

Whether you are looking out your window at the wonder of snow or trying to prognosticate when it will hit, one thing is for sure.  If you are in a state with mandatory sick leave, employees may be invoking their right to no-questions-asked leave when you otherwise prohibit any excuses.  Such “no excuse” policies are common during snow events at businesses that must provide service – hospitals, property management companies, no-stop assembly lines. Think patients to be cared for, sidewalks to be cleared, machines that will seize without humans.

Why invoke statutory sick leave?  Many states don’t permit employers to require a doctor’s note for absences of less than two or three consecutive shifts.  Regardless of your political position on paid sick leave, there is not denying that the right to be absent without penalty or verification is a recipe for abuse.

What’s an employer to do where it cannot provide critical services when employees are absent?  Although there is no “magic bullet” employers can implement uniform procedures for any snow-day absence that might deter abuse.

• Make the advance notice of absence on snow days a longer period (i.e. rather than 1 hour, make it 4 hours) if your sick leave law allows it.  Maryland’s law recognizes that if an employee fails to follow the call in procedure AND the absence will cause a disruption, sick and safe leave (SSL) may be denied.  Employees who dishonestly use leave aren’t always good planners, so they might incur some adverse consequence for calling out under this policy.
- A couple of caveats, though. The burden of proving disruption likely will be yours, and Maryland, like most states with sick leave laws, excuses compliance with a call in procedure if it interferes with the ability of the employee to use the SSL.

• Require employees to sign certifications whenever they take leave on snow days that identifies the reason that the leave was taken, who if anyone can verify that it was for the stated purpose and that the employee understands that if he/she is found to have used it for any other reason, he/she will be subject to discipline.

• Require a meeting with HR to discuss the reason for any absence on a snow day.  When people have to explain themselves, it may make them less likely to try to abuse leave.