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Calling in sick at work – whether you’re actually sick or not – is your right as an employee. Taking a sick day is a common request when employees come down with a cold, the flu, or another illness. Sickness may not only render an employee unable to perform his or her job, but it may also be contagious and liable to spread to other employees.
Taking a sick day is often the best solution to getting well and preventing a widespread virus outbreak at work. Yet many employers ask pointed and often very personal questions about an illness, making employees feel that they have to prove their sickness. Learning what your boss can and cannot ask in these situations will help you protect your rights and prevent unfair employer retaliation.
Employers often ask the details of the illness and how long the employee expects to be out. There is no federal or state law prohibiting an employer from asking certain questions when an employee calls in sick. Most employee handbooks will have more in-depth details about the sick leave process at a specific place of employment.
To understand which questions your employer may legally ask you, first differentiate between sick days and vacation days. If your employer has a paid time off (PTO) system, you can most likely use your PTO for any purpose. Typically, an employer cannot require an employee to show proof of an illness for taking PTO, since an employee doesn’t have to be sick to use these vacation days. Unpaid time off, however, may result in the employer requiring proof of illness.
In general, the law allows employers to ask about the details of a sick leave, such as the nature of the illness and when the employee expects to return to work. These are general questions that can give the employer an idea of the circumstances of the sick leave. An employer cannot, however, require proof of an illness outside of company policies. An employer must apply sick day regulations to every employee to avoid discriminating against employees who may have disabilities. The Family and Medical Leave Act allows an employee to take an extended sick leave of up to 12 weeks for a number of serious health conditions and other reasons, without employer retaliation. However, an employer can require medical certification of the condition.
California Governor Jerry Brown signed Senate Bill 3, which addressed paid sick days. The new law addresses what qualifies an employee for paid sick leave and when an employee may take this leave. According to the bill, California employees can use paid sick leave beginning on their 90th day of employment. The law covers all employees who work at least 30 days for the same employer within one year – including part-time and temporary employees (with some exceptions). The Paid Sick Leave law also states that it may be unlawful for an employer to require doctors’ notes if it interferes with an employee’s statutory right to the leave.
Nothing in the new law specifically addresses what an employer can and cannot ask regarding a sick leave. However, the California Department of Industrial Relations has interpreted the statute to mean that it may be unlawful for an employer to deny sick leave on the grounds of not having a doctor’s note. If you need to learn more information about your rights as an employee taking sick leave in California, talk to an attorney. You may have a case against your employer if he or she discriminated against you in asking questions about your illness, punished you for taking sick leave, or denied your sick leave because you could not produce a doctor’s note.