Sick Leave and Disability Leave

Although few employers are required to offer paid sick time, many do.

April 27, 2016

According to the federal Bureau of Labor Statistics, many employers offer employees some paid sick leave: 75% of full-time employees and 27% of part-time employees have access to this benefit. These numbers look even better when you consider that sick time is usually a voluntary benefit. Employers in most places aren’t required to offer paid sick or disability leave. If you need time off for an illness or temporary disability, your options will depend on your employer’s policies and your state and local laws.

Unpaid Leave

If your situation qualifies as a serious health condition, you may qualify for time off under the federal Family and Medical Leave Act, or FMLA. The FMLA gives eligible employees the right to take up to 12 weeks of leave per year for their own serious health condition (including pregnancy) or to care for a family member with a serious health condition, among other reasons. Your employer must continue your health insurance while you are on leave and reinstate you when you are ready to return. However, the FMLA applies only to employers with 50 or more employees. And, FMLA leave is unpaid. Some states have their own family and medical leave laws, which may apply to smaller employers or provide additional leave rights. For the rules in your state, select it from the list at our State Family and Medical Leave Laws page.)

If your condition or illness is serious enough to qualify as a disability, you may be entitled to additional unpaid time off as a reasonable accommodation under the Americans with Disabilities Act (ADA). However, conditions that are temporary, such as a broken leg or a case of the flu, generally aren't covered by the ADA.

Some employers offer unpaid leave as part of their employment policies. However, unless your time off is legally protected (for example, by state law or by an employment contract), your employer is free to decide whether or not to offer this benefit—and, if so, which employees are eligible and in what circumstances.

Paid Leave

Although most employers aren’t legally required to offer paid sick leave, a handful of states—California, Connecticut, Massachusetts, Oregon, and Vermont—have paid sick leave laws that apply to private employers. A few cities and local governments, such as San Francisco and Washington, DC, also require certain employers to provide paid sick leave. These laws generally allow employees to accrue one hour of paid sick leave for a certain number of hours worked (for example, one hour of sick leave for every 40 hours worked). However, employers are typically allowed to cap accrual at around five sick days per year.

Other than the few places that mandate employer-provided sick leave, however, employers are free to make their own rules about use of sick leave. Many employers choose to offer at least some paid sick leave, whether in a sick leave policy or a paid time off (PTO) policy. If your employer has such a policy, it can require you to follow the rules of its program, such as providing a doctor's note or giving a certain amount of advance notice.

Some employers also provide disability leave, often through an insurance program that compensates employees for this time off. Whether you can use your employer's disability program will depend on the terms of the policy. Your company's HR department or benefits specialist should be able to help you navigate the details and paperwork.

State Temporary Disability Insurance (TDI) Programs

Currently, five states—California, Hawaii, New Jersey, New York, and Rhode Island—have temporary disability insurance programs that pay employees who are temporarily unable to do their jobs due to illness or injury. These programs pay a percentage of your usual salary. Generally, these programs are available only to employees who suffer an injury or temporary disability (including pregnancy) that is unrelated to work; on-the-job injuries are typically handled through workers' compensation insurance.

The way these programs work depends on state law. For example, the program might be a government insurance fund, to which employees, or employers and employees both, must contribute. Or, state law may require employers to provide this type of insurance for employees, without involving a state fund.

If you are temporarily unable to work in one of these states, and you meet the program's requirements, you will need to apply for benefits. To find out how to apply, contact your HR department or your state's labor department.

To learn more about how employment law affects you, see Nolo's book Your Rights in the Workplace.

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