What can I do to stop my company from forcing us to use vacation time to visit the doctor?
November 19, 2012 8:41 PM   Subscribe

My organization is forcing us to use vacation time instead of sick leave to visit the doctor. YANML, but is this actually legal? What can we do to get them to change this policy?

I work for a medium-sized multinational organization, with an office in New York. Recently they instituted a new rule that says that if you want to take off time to see a doctor for something other than an emergency, you have to use vacation time (of which we only get 12 days a year); only emergencies or necessary treatments are covered by actual sick leave (of which we get 7 days a year).

Further, on the form to request off time, you need to explain why you're going to the doctor and it has to be for only "emergencies." Their reasoning is that if you're physically capable of coming to the office, then your condition is not severe enough to count as "sick leave," so you need to prove that you did, in fact, have a true emergency. This seems exceedingly unfair, not to mention a likely violation of HIPAA and/or FMLA. I know you're not my lawyer and all that, but has anyone dealt with this sort of thing? Do we have any recourse? Are there any relevant laws or rulings that I can bring to my employer to get them to back off?
posted by anonymous to Work & Money (18 answers total) 6 users marked this as a favorite
I think the right answer here is to talk to a lawyer.

That said, for what little it's worth, the policy where I work is that if an employee tells me that he/she needs to use sick leave, I cannot ask what the reason is. (Sick leave requests of more than X days require HR sign-off, but again I as the supervisor am not told the reason.)
posted by Forktine at 8:50 PM on November 19, 2012 [1 favorite]

New York State does not give workers any right to paid sick days so the company is probably within its rights. You can call the state Department of Labor if you want to talk to someone or double check. If you want to change the policy? Ask nicely, form a union, or join the fight for paid sick day laws. They don't have to allocate any sick days at all, so you can't really make them change.

FYI FMLA provides for unpaid leave (and you don't have to be sick, you can be taking care of a family member) so it's a bit different.
posted by cushie at 8:59 PM on November 19, 2012 [2 favorites]

You should talk to a labor lawyer (and find a new job).

The FMLA allows unpaid leave for serious medical conditions, not routine medical exams. I doubt HIPAA is implicated, but the Americans with Disabilities Act might be. A law firm has created this page on the legality of requiring reasons for sick leave.
posted by grouse at 9:01 PM on November 19, 2012 [3 favorites]

This seems exceedingly unfair


not to mention a likely violation of HIPAA and/or FMLA

Highly unlikely. US employers aren't technically required to offer vacation or sick leave, so there's an enormous amount of discretion as to individual policies for that. For example, I attended the funeral of my then-girlfriend's father a few years back, and the company made me use a vacation day rather than a sick day. If it had been my father, I could have used a sick day, but because the deceased wasn't technically family, I had to use vacation time.

Arbitrary? Yep. Legal? Yep.

As far as HIPAA goes, I'm no expert here, but the way I understand it is that most employers aren't actually covered by HIPAA. Check HHS's summary here. Your employer is not a health care provider, health plan, or health care clearinghouse, so it's not a "covered entity" under the law. That being said, distributing your health information is going to be a very bad move. But I don't think there's any HIPAA reason why your employer can't ask for this information. This is basically your employer asking for a doctor's note so it knows how to classify your PTO. This is presumptively legal.

I really can't tell what you think might be going on under FMLA though. The act provides for unpaid leave under certain circumstances. It doesn't have anything to do with PTO. Indeed, you generally have to use your PTO before you can take leave under the FMLA, and it needs to be the kind of thing where you're going to be out of work for weeks, not an afternoon.

You want a definitive answer? Call an employment attorney. But I think you can save your pennies here, because this really seems like the kind of standard HR bullshit that companies in the US are allowed to pull.
posted by valkyryn at 9:03 PM on November 19, 2012 [4 favorites]

Do we have any recourse?

posted by pompomtom at 9:13 PM on November 19, 2012 [28 favorites]

I would imagine that most people in that circumstance simply don't tell anyone that they have a doctor appointment and call in sick that day with something that's unlikely to be asked about, such as a bad intestinal flu.
posted by slkinsey at 9:14 PM on November 19, 2012 [7 favorites]

I think people generally make up the time for doctor's appointments rather than take a vacation day or a sick day. I'm not aware of any across-the-board rules regarding sick days.
posted by amanda at 9:20 PM on November 19, 2012 [3 favorites]

I worked at a place like this. The rule was that if you know about it in advance and you can schedule it, it's not a sick day. I think part of the reason is they don't want people calling out 12 times a year if they can limit it to calling out 7 times a year. The way around it is not tell them and make something up. But wouldn't you rather save your PTO for interviews anyway?
posted by bleep at 9:24 PM on November 19, 2012 [6 favorites]

Employers are generally permitted to require non-condition-specific disclosure for health related out of office whether paid or not, and in limited circumstances condition-specific, too. The use of vacation for health related paid time office is not only not prohibited, but is encouraged in FMLA.

Its other merits aside, unionization is no way to get out of rigid or bureaucratic paid time off policies. Union contracts tend to regulate hours and PTO very closely and subject them to lots of reporting; that rigidity is the number one complaint you hear from professionals new to jobs being, or supervising, unionized labor.
posted by MattD at 9:37 PM on November 19, 2012 [1 favorite]

This isn't unusual. I've worked for many employers both in the for-profit and non-profit world that consider sick leave to mean "too sick to work," not "time off for health-related purposes." The rationale is that doctor's appointments are like any other personal business matters such as banking, etc., and thus need to be scheduled on your own time rather than the company's dime.

Personally, I think it's counterproductive to get super strict across the board beyond the realm of typical common sense. The slack employees will just lie, the "good" employees will work while sick until they leave the company for a more agreeable workplace, and how much productivity is saved if it costs more staff time enforcing picky-sticky rules? But I digress.
posted by desuetude at 9:38 PM on November 19, 2012 [4 favorites]

Do we have any recourse?

Quit. It's probably legal but really cruddy. It also doesn't speak well of their fiscal health. I would start looking for a new job.
posted by The Light Fantastic at 11:59 PM on November 19, 2012 [1 favorite]

Given that you've got 12 vacation days, I think their logic is that ten of those are meant for real vacation, and two of those are "personal days", essentially. Considering a doctor's appointment alone shouldn't usually take a whole day, from their perspective, you've got four half days a year paid for this sort of thing, or more if you're willing to cut into your real vacation time. They assume you're probably going to use all that time, every year, and they've planned accordingly.

Sick time, on the other hand, is something that ideally people won't need. It's a cushion for emergencies. They don't count on every employee actually using all 7 days, every year. If you give someone seven days of that and then they use two a year on routine doctor's appointments, *plus* all 12 vacation days, routinely, then you've essentially lost two days of productivity per employee per year. It adds up. It's not great from your perspective, but it's not uncommon.

If you've got ongoing health problems, FMLA might help you in terms of getting unpaid time for doctor's appointments, but not paid.
posted by gracedissolved at 2:29 AM on November 20, 2012

NY State Department of Labor:

Q: Must an employer pay workers for holidays, sick time and/or vacations?

A: Under the New York State Labor Law, payment for time not actually worked is not required unless the employer has established a policy to grant such pay. Holidays, sick time and/or vacations fall under 'time not worked.' When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose.
Fringe benefits may include:

Reimbursement of expenses or tuition
Health coverage
Payment for - Sick time - Vacation - Personal leave - Holidays

posted by JJ86 at 5:47 AM on November 20, 2012

Next year we're moving from a Vacation/Sick Leave model to a PTO model.

So we get a specified number of days, and it's all on me to figure out how I want to allocate them. If I never get sick, I get extra days!

Personally, I think this is bullshit, legal, but utter bullshit. Also, red-flag. If your company is willing to dick you around like this, it won't be the first thing.

Writing is on the wall, time to find a new job.
posted by Ruthless Bunny at 6:54 AM on November 20, 2012

Mod note: From the OP:
"To clarify: our contract specifies that we have 7 sick days per year and we earn 1 vacation day per month worked. Regarding sick leave, the contract specifies only that absences of 3 days or longer require a doctor's note; there are no other stipulations. However, they basically want us to never use sick days ever. In the past it was no problem to use sick leave for doctors visits, but after the rule change, the first person to submit for sick leave was told that they needed to have their doctor write a note describing their condition and that the accounting department would then determine if the condition was severe enough to count as sick leave. That person brought up that it was likely not legal, but they have now changed to requiring the receipt for the copay, and from that amount they can guess what your treatment/condition was. Another person who came in late one day because they were not feeling well was told that since it was self-diagnosed, it was not really an illness and that they must use vacation days. The issue is not really the change in policy as much as the (privacy violating) lengths we have to go to in order to prove that we were so sick as to be physically incapable of coming to the office."
posted by jessamyn (staff) at 7:15 AM on November 20, 2012

I don't think I've had an employer where sick leave was for routine doctor visits, but any kind of illness, even non-emergency (cold, flu) was OK.
posted by zippy at 7:24 AM on November 20, 2012

Having read the update, that's some really scummy behavior on the part of your employer. I would not hesitate to quit under such circumstances (just as soon as I had lined up another job, which I would actively start trying to do as of today) nor would I hesitate to make it clear (again, once a job was lined up and I was ready to give notice) that my quitting was due in large part to this violation of my basic fucking dignity.

People are spot on that once a company starts going down this road, they rarely turn back. If you stay, things are going to get worse rather than better. It bespeaks a company that is in significant financial trouble and is throwing its employees under the bus in order to try and cut costs by whatever short-sighted penny-pinching means they can. Mark my words, this is only the beginning for your current employer. Start looking for a way out.
posted by Scientist at 7:32 AM on November 20, 2012 [4 favorites]

If you have a contract, then it is probably a perfect opportunity to hire labor attorney. The first step is to organize your co-workers who have been affected. Assuming your co-workers aren't unionized, it still is relatively easy to organize and all chip in to hire someone to represent you. The biggest thing is that you will have to prove some sort of hardship which means you and your fellow employees will have to document every instance of being forced to follow these new rules.
posted by JJ86 at 9:57 AM on November 20, 2012

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