Do I have to pay out sick leave to someone already given a lay off date if they produce doctor note stating they must be out until past lay off date?

We are closing an office and staff were given a letter notifying them of lay off
and given last day of 12/29. One employee has 62 hours of sick leave and
produced a doctors note today stating they must be out until 1/3/18. How must I
handle this?

Asked on December 13, 2017 under Employment Labor Law, New Mexico

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First, clearly, you would not have to pay anything at all for 12/30 - 1/3/18, if the last day of work is to be 12/29. Even a legitimate illness or medical leave does not require you to employ or pay them past when you are closing the office anyway.
If the employee has 62 hours of sick leave, they are entitled to use it--leave is part of compensation, and you have to let employees use it or else you are in breach of contract: violation of the agreement (even if only an oral or unwritten one) under which they worked in exchange for certain pay and benefits. If you don't let an employee use his/her leave, they could sue you.
Sick leave is only for illness or medical care: you could deny its use for other reasons. Even with a doctor's note, it is likely, given the timing, that is this not a legitimate usage of sick leave. You could in theory deny paying for it--but if you do, it is at least reasonably likely the employee would sue you and, since they have a doctor's note and presumably could call the doctor in to testify, they have a reasonable chance (not a guaranty, but a reasonable chance) of winning. Even if they lost, you'd incur the legal costs of the lawsuit. Since if they did not go out sick, you'd be paying them through 12/29 anyway, you may wish to simply let them take their leave and pay them for it--you're not actually out any money based on what you write, and fighting this battle is probably not worth it.
 


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