In a small company how is an employee’s sick leave handled?

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In a small company how is an employee’s sick leave handled?

I manage a company of less than 10 employees in New York City. One employee is having surgery that will require between 2 to 6 weeks recovery. She still has her 2 weeks of vacation time remaining. How should her time off be handled legally? We will also have to hire someone to replace her during her time off.

Asked on June 2, 2011 under Employment Labor Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

1) You don't have to provide her sick leave or paid time off.

2) You may let her use her vacation for her sick time, if you like. If she has a disability--some chronic condition--you may need to let her use her leave and not fire her (see below) while she is on it.

3) Unless she specifically uses some protected medical leave time (see below), you don't need to retain her if she takes off time past what she has come form of leave for--if she does not use a protected leave and does not go to work, you may terminate her. You obviously do not need to do this, if you don't want.

4) Your firm is too small, however, to be covered by the Family and Medical Leave Act, so you do not need to offer her mandatory unpaid leave. So going back to 2) and 3)--if she doesn't have some form of accrued leave to protect her employment, she could be fired if you need to.

Note that as implied by 2), above, disabilities complicate matters--businesses, no matter how small, have to provide "reasonable accomodations" for them. If you believe this may be the case, you should consult with an employment attorney who can evalute the specifics of this case and advise you as to what to do.

Note that if you can accommodate her in some fashion, that's not a bad thing, if she's a good employee. And in place of "terminate," putting her on unpaid leave during the time is always an option--that way, you don't need to pay her while paying her temporary replacement.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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