Can my company deduct annual leave instead of sick leave?

January 7, 2008 1:07 PM

My company has the following leave policy: If you take a week's vacation and then, the following week are ill without returning to work (Mon & Tue say), the extra days will be deducted from your vacation / holiday balance rather than your sick leave. Is this legal? (This is for both UK and USA offices so responses from either side of the Atlantic invited.)

The clause from my company's employee handbook is as follows:
Please note that if you book holidays and you are subsequently sick, the days will still be counted as holiday and not as sick leave.

I am particularly sniffy about this since with my previous (European) employer, if you were sick while on leave, you were reimbursed those vacation days. Not that I've ever taken a sickday but it's the principle...

posted by NailsTheCat to work & money (27 comments total)

It is legal as far as I know. Companies have broad latitude to define benefits policy, and can do basically whatever so long as they provide you with a detailed booklet describing the policies in sufficient detail. There are only a few things that they can't do. They must, for instance, pay you the value of your unused vacation if you quit. In some localities, they cannot deny requests for vacation time (against a positive vacation time balance), even if it is inconvenient for them (and even if they tell you otherwise).
posted by TeatimeGrommit at 1:11 PM on January 7, 2008 [1 favorite]

The company I work for has no concept of "sick" vs "vacation" days. Everyone gets a certain number of hours every year and they can use them however the want. I also know of a few other large US companies that work the same way. That would make it unlikely that there would be any laws forbidding sick days to be counted as vacation days, because in my case all sick days are counted as vacation days.
posted by burnmp3s at 1:11 PM on January 7, 2008

US federal law doesn't require companies to give any paid sick leave at all, as far as I can tell. Unless the local law where you are or the contract you signed with the company says otherwise, this wouldn't be illegal.
posted by phoenixy at 1:12 PM on January 7, 2008

I think the wording means that if you are ill while on holiday then you have used up your leave days (irrespective of how much you enjoyed it)- rather than subsequent to the holiday, subsequent to booking?
posted by Gratishades at 1:14 PM on January 7, 2008

Gratishades: I wish it meant that. It's definitely as I described because it was implemented as a kneejerk reaction to a specific situation - and has been sidestepped by people crawling into the office for half a day before returning home officially 'sick'. I can accept losing a week of vacation if I was sick throughout that week. It's the being sick on the following Monday, Tuesday etc. and losing further vacation days that irks me. (

All: Thanks for responses. I'm disheartened on the US front. Anyone know about the UK?
posted by NailsTheCat at 1:25 PM on January 7, 2008

In the US, I think they can probably make whatever leave policy they want, since the federal government doesn't require employers to give any leave at all. As long as they stick to the policy they've set out and you've agreed to, it's probably legal.
posted by gauchodaspampas at 1:28 PM on January 7, 2008

I know that some companies require employees to work the day before and the day after a regularly paid holiday, otherwise the holiday is deducted as a vacation day. Your company's policy sounds like a variation on that.
posted by occhiblu at 1:32 PM on January 7, 2008

A lot of people "call in sick" when they are still in, say, Jamaica, but don't have the vacation days left to rightfully be on vacation. I can see a good reason to try to prevent the planned-lying-about-being-sick days, since that's a common thing to take advantage of. If you come to work with a doctor's note, do they still do that?
posted by Kololo at 1:40 PM on January 7, 2008

Obviously, the policy is to avoid sick time being used as vacation time. It's a real issue. We did some graphs a few years ago and Fridays and Mondays are disproportional in relation to the rest of the week for sick time.

Most likely, if you bring in a doctor's note, they would not make you spend your vacation days.
posted by Argyle at 1:44 PM on January 7, 2008

Kololo: If you come to work with a doctor's note, do they still do that?

I don't know. I just heard about the policy now. I understand what they're trying to tackle with the policy - and they're quite right to do so. If a doctor's note would make an exception to the policy then that would make the policy reasonable in my eyes.
posted by NailsTheCat at 1:45 PM on January 7, 2008

I'm in the UK. I don't know what the legalities are, but my company has a policy that if you are sick while on holiday, you can actually apply to get your vacation days given back to you. It requires a doctor's note and a lot of hoop jumping, but it can be done. The British take their holidays *very* seriously.
posted by happyturtle at 2:01 PM on January 7, 2008

U.S. Department of Labor's Vacations page.
posted by ND¢ at 2:11 PM on January 7, 2008

All the Universities (in the US) where I've worked have had this kind of policy. That is you couldn't take sick days and vacation days without an intervening day when you worked. It does seem like a reasonable company would let you have your sick days if you could prove that you were really sick. I never had to try it out in my case.

I suppose it's too late to claim the whole time as sick leave? Maybe sometime in the future you could use two sick days for a long weekend or something? Not ethical I suppose, but when I left my old job I had a zillion sick days leftover that were mostly free money for my employer.
posted by sevenless at 2:25 PM on January 7, 2008

I'm in the UK and sick days are not counted against any maximum. If I was sick whilst ostensibly on holiday I could probably do the same thing as Happyturtle.

In a wonderfully passive/aggressive way, HR has written memos to people that repeatedly take days off sick immediately after coming back from holiday to the effect that HR will book a doctor's appointment for the employee before s/he travels, just to make sure they have all the right jabs.
posted by patricio at 2:34 PM on January 7, 2008

As long as they stick to the policy they've set out and you've agreed to, it's probably legal.

Does anybody know about whether/how a US company can legally change the sick day/vacation policy once you're already an employee? I mean, if you signed some sort of paperwork agreeing on your benefits when you were hired, can they go and change that two months later?
posted by vytae at 2:37 PM on January 7, 2008

Wow, I'm stunned by the employment laws of the US. There's no requirement for paid leave, even public holidays are unpaid days by law. And the idea of 'right to work' laws seems insane to me.

In the US I'm pretty certain it would be allowed, in the UK, while not really sure, I'd not be surprised if it wasn't contrary to the statutory requirements, but it may be possible to change those regulations by contract.

In NZ, by contrast, 4 weeks annual leave is mandated by law. 5 days sick leave (after six months) increasing by 5 days each 12 months subsequent. Public holidays are paid days off. If you work on a public holiday you are legally entitled to double-time and a day in lieu.

I'm fairly sure this would be illegal in NZ. Annual Leave can only be taken with agreement of both parties. I don't think you'd be able to contract that differently.

Of course if you're a contractor all that out the window, but most people aren't.
posted by sycophant at 2:47 PM on January 7, 2008

I'm in the UK and sick days are not counted against any maximum.

Yeah, but don't bank on that... Health problems over the last six months led to me taking an unusually high number of sick days (~14, iirc) and my employer has informed me that further sick days will be paid at SSP (Statutory Sick Pay) rather than (as previously) at my usual salaried rate.
posted by kxr at 2:52 PM on January 7, 2008

FYI - The policy was put in place by the UK headquarters' HR department for both UK and US staff. I'm not surprised to learn I have few rights to leave in the US but (as a Brit) I'm surprised the same policy could apply to the UK. Ah well.

sevenless: Thanks, but I haven't been stung by this. I was just curious about its legality.
posted by NailsTheCat at 3:42 PM on January 7, 2008

Sounds like you need to get sick a couple days before going on vacation . . .
posted by donovan at 3:44 PM on January 7, 2008

If I was sick whilst ostensibly on holiday I could probably do the same thing as Happyturtle.

Happyturtle had that benefit written into his contract, there is no general right to it.

It doesn't seem that the UK Working Time regs cover this exact area, so it's probably all arguable and contractual. However, the Asker's clause 'if you book holidays and you are subsequently sick, the days will still be counted as holiday and not as sick leave' seems at the least to impose a blanket presumption of employees lying in a particular situation, and unfairly open-ended. I would certainly consider challenging it if was used to deny SSP, which is a statutory right after 3 waiting days. What if you return from holiday with a broken leg, say, are you considered by the firm to be on a 2 month vacation until the plaster comes off?
posted by wilko at 4:45 PM on January 7, 2008

I second what Gratishades, even though you've already commented on it.

"Please note that if you book holidays and you are subsequently sick, the days will still be counted as holiday and not as sick leave." does NOT mean "If you take a week's vacation and then, the following week are ill without returning to work (Mon & Tue say), the extra days will be deducted from your vacation / holiday balance rather than your sick leave."

It means "If you're sick while on holiday it comes out of the holiday leave you've already booked."

It looks like the company is deliberately mis-interpreting their own rules because employees have been abusing them.

(Sounds like the whole place sucks.)

donovan's comment above highlights why the interpretation you describe is the wrong use of "subsequently".
posted by krisjohn at 4:50 PM on January 7, 2008

Perhaps a bit of additional explanation is required here. What, exactly, is the difference between "vacation days" and "sick days" besides the fact that you can't overtly plan sick days?

What's stopping you from letting the company take one of your vacation days when you extend your vacation by one day due to sickness, and then creating a 3-day-weekend by calling in sick on a Friday or Monday?
posted by explosion at 4:51 PM on January 7, 2008

"Please note that if you book holidays and you are subsequently sick, the days will still be counted as holiday and not as sick leave." does NOT mean "If you take a week's vacation and then, the following week are ill without returning to work (Mon & Tue say), the extra days will be deducted from your vacation / holiday balance rather than your sick leave."

I agree with krisjohn. I think the key word is "book".

"If you reserve two weeks in August to go to Aruba, and when August rolls around, you happen to get sick and don't get to Aruba, you just sit home sneezing and feeling sorry for yourself, tough. We're not going to retroactively call it sick leave and give you another two weeks off in September." is clearly what it means.
posted by AmbroseChapel at 5:39 PM on January 7, 2008

To everyone who's written that the sentence from the company policy should be interpreted as the days originally booked remain as holiday: I think you're correct.

And I further think krisjohn is correct in that it's being deliberately misconstrued by my company. (It's been explained to me by UK staff that my originally expressed interpretation is how it has been enforced subsequent to particular "incidents" in the UK. But it's anecdotal - albeit just one degree of separation - so I'll sniff it out when I'm next in London.)

As to the difference between sick leave and annual leave... In my mind it's huge: it's something you book in advance, get paid for if you leave and haven't taken it etc. But that's my European perspective I guess. Perhaps in the US there's little difference.

Thanks to all for the valuable comments.
posted by NailsTheCat at 6:38 PM on January 7, 2008

Argyle writes "the policy is to avoid sick time being used as vacation time. It's a real issue. We did some graphs a few years ago and Fridays and Mondays are disproportional in relation to the rest of the week for sick time."

Correlation != Causation. Could be people are just more willing take a single sick day when they know they'll have an unpaid day being sick. IE: I've been sick as a dog this weekend and considering I'm not 100% yet I'll call in sick Monday. Also I'd bet a significant portion of Monday sick days are the result of excessive partying on the weekend, recovering from long drives from out of town visits, that kind of thing.

And I wouldn't be surprised if at least some of the Friday sick days result from the iron man who doesn't take a sick day on Monday despite obvious symptoms and spreads their illness to half the office.

vytae writes "I mean, if you signed some sort of paperwork agreeing on your benefits when you were hired, can they go and change that two months later?"

It would be no different than the company unilaterally changing your hours (say 37.5 -> 40) or reducing your pay (obviously not below minimum). It should be laid out in your contract. If not they are free to do it and you are free to quit.
posted by Mitheral at 9:40 PM on January 7, 2008

It might be different in San Francisco, where we have a sick leave ordinance. But I think it's the first one in the US.
posted by ClaudiaCenter at 9:44 PM on January 7, 2008

It would be no different than the company unilaterally changing your hours (say 37.5 -> 40) or reducing your pay (obviously not below minimum). It should be laid out in your contract. If not they are free to do it and you are free to quit.

In the UK jurisdiction, if not the US, such unilateral changes would be a breach contract, and eg may lead to a claim for constructive dismissal, depending on the circumstances. While anyone is "free" to breach a contract, let's not overlook that doing so may lead to a claim for compensation.
posted by wilko at 4:28 PM on January 12, 2008