This question was recently posed to Vee Sotelo regarding employees that called out the day before or after a paid holiday (day off):
Our company has a policy that requires employees to be at work the day before and after a company-observed holiday in order to be paid for that holiday. If an employee calls in sick the day before or after the holiday, can the company require the employee to produce a doctor’s note in order to receive pay for the holiday?
Here is Vee Sotelo’s response:
As you know, the Labor Commissioner has adopted the position that as long as the employees have job-protected sick days available under the Paid Sick Leave Law to be used, requiring the employees to produce a doctor’s note in order to use their available sick days is a violation of the Paid Sick Leave Law. Therefore, the focus of the analysis is on whether or not the employees are using their accrued and available sick days in order to call out sick the day before or after the holiday. If employees call out sick the day before or the day after a scheduled holiday closing and they have no sick days accrued and available, it does not matter that they claim to have been sick or were legitimately sick before or after the holiday. The absence is not protected by the Paid Sick Leave Law. Under these circumstances, the employer can apply its policy of requiring a doctor’s note to substantiate the absence. Once the employees run out of the accrued and available sick days, any further absences (even for legitimate reasons) would not be protected under the Paid Sick Leave Law.
If an employee still had sick days available and called out sick the day before or after the scheduled holiday closing, the employer will not be able to require the employee to produce a doctor’s note to substantiate the absence, even though the employer has a policy that allows it to require a doctor’s note when an employee is absent under these circumstances.
The bottom line is that, if an employee has not yet depleted her accrued and available sick leave and uses one or more of those days to extend her holiday, there is nothing the employer can really do about it. The employer cannot ask for a doctor’s note and cannot discipline the employee for violating the employer’s policy prohibiting employees from calling out sick the day before or after a holiday. However, if the employee has already used all of her accrued and available sick days for the year, then any subsequent absence from work would not be protected under the Paid Sick Leave Law, even if the employee was legitimately sick or needed to take the time off to care for a legitimately sick family member. In that case, the employer can ask for a doctor’s note if the employee calls out sick before or after a holiday.
For any questions regarding new laws, or existing laws, contact the Labor and Employment Law Attorneys at SBEMP.
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