Sick Leave Rules Making You Sick?

The city’s rules regarding the accumulation and use of sick leave can be confusing. Between collective bargaining agreements, the New York State Paid Family Leave program, and the difference between the city provided benefit versus the NYC Paid Safe and Sick Leave Law, you can get some butterflies in your stomach. I don’t think you’ll be able to get a doctor to write you an excuse note for that…

As usual, we’ll use the DC37 citywide contract as our reference; however you’ll need to check with your local or other union (i.e. Teamsters) to understand any differences in the terms or benefits.

The first thing to know is that, in general, an employer is not required to pay an employee for time not worked. As per the Frequently Asked Questions page from the NYS Department of Labor (NYSDOL):

Of course, vacation time (Annual Leave), sick time, and holiday time off are incentives to attract employees, so most employers provide some of these benefits. So, through the collective bargaining agreement (Citywide Contract), the city provides paid time off for being sick (see sections 5, 6, and 7 of the contract). The accrual rates are based on your years of service and you can generally use them as they accrue. The city’s sick leave policy is pretty generous as compared to many private entities who limit the amount of time you can accrue.

If you read the NYSDOL answer thoroughly, you’ll note that “When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose.”

For some agencies, this means they can request documentation in a different format. For example, FDNY requires their civilian employees to fill out a specific form to use for official documentation:

When this form was introduced, this is when many of us learned about the “…impose any conditions they choose” language. Many employees called NYSDOL for guidance and they all received the same answer – unless it was specifically addressed in the collective bargaining agreement, the city (and agency) can require any documentation for any leave.

The form is a bit intimidating; bringing it in to the doctor’s office is a bit embarrassing at first. Then the language of “I further certify that the employee was unable to perform his/her duties…” is a bit menacing to the care provider. But, if you wanted to be considered “out, documented sick” you needed to bring this form with you when you returned to work.

Other agencies I’ve worked for usually accepted standard doctor’s notes that are routinely provided by the doctor’s office.

“Approval of sick leave in accordance with the Leave Regulations is discretionary with the agency” meaning each agency can decide on how they will handle sick leave usage.  As per the citywide contract, section 5, paragraph “b”, there are times when “proof of disability” (i.e. sick note) is required. If you’re out 3 consecutive days or more, a note is typically required. Same goes if you use too much “undocumented” sick leave. I always encouraged everyone to get documentation even for one day out on sick leave. Once you’re around a while you’ll build up enough annual days to not have to call in “well” or use sick leave for a “mental health day”.

Sick leave usage is monitored in two six month blocks known as “sick leave periods”. One period is from January 1 to June 30, the other is from July 1 to December 31. If you take too much undocumented sick leave between either or those periods you could be required to submit documentation for every sick day. Continued use of undocumented sick leave could get you into a disciplinary situation that might include not getting paid for your days or even terminated. Here’s an excerpt from a handbook from Manhattan Community Board 3:

“An employee who exceeds these limits of undocumented sick leave shall not be permitted to use accrued sick leave unless he or she presents medical documentation, satisfactory to the employee’s supervisor, for each use of sick leave. Thus, an employee in this situation will lose a day’s pay for each day of sick leave that is not accompanied by satisfactory medical documentation.”

Typically there is a variety of “Steps” that an agency will run someone through. They usually start with verbal warnings, and then written, then they escalate from there. Really, you don’t want to screw around with your sick time use and you shouldn’t look to burn it as you get it – you want it there if and when you need it.

In some agencies you can use up to two days of sick leave to care for family members. But it is up to the agency. As per the citywide contract, Section 5.a.ii.:

As for the recent Paid Family Leave law  from NYS and the city’s Paid Safe and Sick Leave Law, the NYS says that a “public employer may choose to offer paid family leave” (emphasis added) and NYC’s FAQ says” If an employee is subject to a collective bargaining agreement that is in effect on April 1, 2014, the employee becomes covered under the law beginning on the date that the agreement terminates.”(again, emphasis added). So, with a citywide contract in place, these laws appear to not be applicable to a city employee. But there’s plenty of time that can be accrued for annual or sick leave use. And if you need more time, there’s the Family and Medical Leave Act (FMLA) available to you, but that’s typically unpaid. It provides protection from losing your job if you need to take more time than you’ve accrued. But that’s a story for another day.

Takeaways:

– Read your agency’s time and leave manual

– Refrain from abusing sick time just to get a day off

– Get real medical documentation as often as you can – even for one day out

– There are two sick leave periods – January 1 to June 30 and July 1 to December 31

– Too many sick days used in a period might get you in trouble – from loss in pay to termination

Comments and Questions are welcomed below.