Calling in Sick
This past month, a prominent labor arbitrator spoke on absenteeism. Here are 4 key points about calling in sick, excerpted from his lecture.
A right, but not an absolute right
Sick people (not just infectious employees) should not be at work, and an individual employee has a right to take the benefit. But the corollary is also important: he does not have the right to take the benefit when he is not sick.
An employee wants to leave before the end of the shift, claiming he is sick. The supervisor wonders whether he is just trying to leave early because he doesn’t like the work assignment or had an altercation with another employee. If your work site has a medical or nurse's station, the supervisor sends him there for an evaluation. Some employers think this is akin to a fitness for duty exam. But is the nurse / doctor giving that opinion? Probably not. The employee has a right to use sick time. The nurse /doctor is only looking at whether he is sick, not whether he is capable of finishing his shift.
Taking time when you’re not sick - is that fraud or theft of time? That is an extreme view and not adopted by arbitrators. In one’s work life, there are probably times when everyone has called in sick, not because we're sick but for other reasons. This is why employers have adopted other approaches, specifically two kinds: pattern and excessive use.
The typical case here is the employee who calls in sick before or after a weekend. Or calls in before or after a vacation. The employee is trying to extend their personal time. If it happens enough, this is persuasive evidence of abuse of sick time.
In one case, a police officer would call in sick just once a year. Hardly seems like a pattern. But it was always Halloween. In this city, the police force is needed on Halloween. Management issued discipline. And the arbitrator upheld that discipline. One day a year, every year for several years, can be a pattern.
What is Excessive?
Most employers have a policy, such as a no-fault policy, which ends up defining excessive. But there is more.
Here are some of the challenges for management. Attendance control comes under the rubric of discipline and the just cause provision. Hence, there has to be proof. Second, the lax enforcement doctrine applies. For example, a supervisor overlooks the early absences and then, out of exasperation, decides to lower the boom. But you cannot lull the employees to think there is lax enforcement. It might be commendable to look at employees as individuals, and to consider extenuating circumstances. But the due process principle requires that there be progressive discipline (in the absence of a policy which defines progressive discipline) and not disparate treatment or lax enforcement.
Requiring a Doctor’s Note
Whether to require a doctor’s note is typically within the employer’s prerogative. (The parties’ CBA may cover this, and that of course controls.) When the contract or policy is silent, arbitrators differ. Some believe that this is an inherent managerial right. But today, this may be a minority view. Many employees do not want to go to the doctor because they have a high deductible. If you arbitrate this case, you may get a ruling that management does not have the right (under a management rights clause) to order a doctor’s note as a matter of course or routine.
So, when can management unilaterally require the doctor’s note? First, the policy should cover this. For example, after 2 or 3 consecutive days of absence, the employee must get a doctor’s note. But if your policy or contract doesn’t cover this and you don’t have an operational reason (such as an airline, when an absence would have a domino effect), it must be more than ordinary absenteeism. It must be bordering on excessive.