It’s important to know your options in case something unexpected occurs, such as an illness or injury. Many, but not all, employers have a process for helping their employees recover from medical issues without fear of losing their job.
For employers that do not offer paid sick leave, federal and state laws exist that can help you keep your job, if you qualify, should you have to take time off for health reasons.
In this quick guide, we’ll walk you through how sick leave works, and review the federal and state laws that protect your rights as an employee. Lastly, we’ll discuss what to do if you are physically unable to work even after your sick leave expires.
How Does Paid Sick Leave Work?
Under most circumstances, it is not enough for you to have a runny nose and call into work sick. That said, your employer benefits should allow you to see a doctor and provide a doctor’s note to confirm your illness when you return to work.
However, many employers have their own paid leave terms and allow you to take those days at your discretion. You should also consult your employee handbook or speak to your HR manager to confirm the process for taking sick leave from work.
There are also legal stipulations that allow you to take time off if a family member is seriously sick or injured. Employers may choose to do more for their employees, and include generous paid maternity or paternity leave, for example.
If your employer grants you both paid sick leave and paid vacation, your sick leave should not count against your paid vacation. Some companies do allow their employees to use “sick days” as extra paid vacation if they’ve not used up their paid sick leave at the end of the year.
U.S. Laws Regulating Paid Sick Leave
Federal Law on Paid Sick Leave
Federal law in the United States does not require paid sick leave, though employers are still bound to comply with the Family and Medical Leave Act (FMLA).
According to the FMLA, American workers may receive to “up to 12 weeks of unpaid leave for certain medical situations for either the employee or a member of the employee’s immediate family.”
This leave is by law “job-protected,” meaning that employers may not use an employee’s family and medical leave absence to replace that employee.
Further, employees may exercise these rights with a “continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” In other words, employees’ health benefits are protected under the FMLA, so long as the employee’s absence meets FMLA criteria.
Workers may use up to 12 weeks of family and medical leave each year for any of the following reasons:
- An employee is sick or injured and unable to work
- An employee is a new parent—either by birth or adoption—and seeks to offer extra care within 12 months of becoming a parent
- An employee’s immediate family member requires assistance due to severe illness or injury
- An employee’s immediate family member is on military, active duty and seeks support from that employee (this is known as a “qualifying exigency”)
- Employees can leave work to spend additional time with their immediate family member if they are scheduled to deploy on short notice. This stipulation also applies to temporary leave during or after a deployment.
- Employees can leave work to attend military functions for their immediate family members.
- Employees can leave work to deal with specific domestic issues resulting from an immediate family member’s military duties.
- Employees can leave work to attend counseling with an immediate family member dealing with issues arising out of that family member’s military experience and stress.
- Military Caregiver Leave is authorized for employees assisting their immediate family member that has endured a serious injury resulting from their active, military service. Military Caregiver Leave extends from 12 weeks/year to 26 weeks/year.
State Laws on Paid Sick Leave
States may enact their own laws on behalf of their resident workforce. When it comes to labor laws in the United States, whichever governing agency (federal or state) is most generous to their workers takes precedence.
That’s why, for example, employers in New York City are required by law to pay a $15/hour minimum wage. Even though the federal minimum wage is $7.25/hour, the state minimum wage is better for employees, and employers must abide by their state laws.
When it comes to mandated paid sick leave, there are some states (plus Washington, D.C.) that have their own set of laws offering paid sick leave to their employees.
State Sick Leave Benefits
The most common state stipulations guarantee employees one hour of paid leave for every 30-40 hours worked. Each state also has a paid leave cap, such as no more than 40 hours of paid sick leave each year.
Depending upon the state, laws may require employers with a larger workforce to offer more paid sick leave than those employers with fewer employees. For example, Oregan law states:
- “Employers with 10+ employees: 1 hr. of sick leave for every 30 hours worked.
- Employers with fewer than 10 employees: 1 hr. of unpaid leave for every 30 hours worked.”
Important: It is a good idea to know your paid leave rights should you ever need to exercise them.
Employers that Offer Paid Sick Leave Benefits
According to the Bureau of Labor Statistics in March 2021:
- 79% of private industry workers received paid sick leave benefits from their employers.
- 86% of union workers received paid sick leave days.
- 66% of full-time workers and 81% of part-time workers received a fixed number of paid sick leave.
Depending upon your employer, they may lump your paid sick leave into your paid time off (PTO). In this case, your paid vacation and sick days are the same, and you may take these days off at your discretion.
While some employers stick to the state or federal minimum, other employees go out of their way to make sure that their employees get as much time off as they need—no questions asked.
What Happens if You are Sick for Longer than Your Available Sick Leave?
If you’ve used up all your available paid sick leave, you may be entitled to unpaid sick leave to give you more time to recover without fear of losing your job. That said, state laws vary on when an employer may or may not replace you.
The tipping point is usually at three months. If you’ve taken more than 90 days of unpaid sick leave, most employers may hire someone else in your stead. After three months, your illness or injury may be considered a disability, and you are protected under a different set of rights.
If your long-term illness or injury occurred while you were at work, you are entitled to workers’ compensation as a payroll employee. You must collaborate with your human resources department to take advantage of your workers’ compensation benefits.
Applying for Disability
Most jobs qualify you for disability benefits if you’ve been sick or injured for more than 90 days. For more information about what qualifies you for disability pay, you will need to contact your local social security office.
Disability Insurance
Those with the means to do so may choose to purchase disability insurance. Should they need to file a claim, the insurance usually pays them a percentage of their regular salary. Often, recipients can accept their disability insurance payouts in addition to other benefits offered by their employer.
Employer Assistance
Some companies have a separate department or fund to assist employees that have used up all of their PTO as a result of injury or illness.
When an employee becomes disabled, they may still be able to work, but they likely can’t work under the same conditions. The employer should accommodate that employee (in fact, they’re required by law to do so).
If the employee can no longer work as a result of their disability, the company may offer its own disability insurance and benefits.
In Conclusion
When you find yourself in the position of needing sick leave, knowing your rights can make the difference between losing or keeping your job. Ideally, you might have a conversation with your employer or consult your employee handbook before you need to take leave. Doing so will give you peace of mind if you or a family member requires you to take time off.
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.
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