Can an employer retaliate against an employee who took a sick day by telling them to take the rest of the week of unpaid?

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Can an employer retaliate against an employee who took a sick day by telling them to take the rest of the week of unpaid?

An employee at a local wood shop was sick, called off and went to the doctor and was diagnosed with flu and told to rest and that it could take up to 3 weeks for him to be himself again but he could go back to work the next day. His boss retaliated not the first time he has done this by telling him not to come in for the rest of the week but he could come in and get his paycheck on Friday. That was Tuesday. He is not paid for this time off. This employer, manager not owner, has done this several times to employees who call in sick. Is this retaliation legal? If not, what are the employee rights in this case. An employee gets sick and loses his pay for the week on top of it? Is this legal?

Asked on August 26, 2016 under Employment Labor Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If the employee used a sick day he had earned for the day off, then this was illegal retaliation: paid time off that an employee earns is part of his/her compensation, and an employee cannot be punished for using it since to do so is to effectively deny him/her compensation he or she worked for.
But if the employee did not have and use PTO (like a sick day), this was legal. An employer does NOT need to let an employee take time off from work to go to a doctor unless the employee uses PTO (or unless the situation, company, and employee were all covered by the Family and Medical Leave Act, and the employee applied for and used FMLA leave), and could choose to terminate (or suspend, demote, cut pay or hours of) employees who miss work for illness or doctors without using PTO or FMLA, rather than let them call out sick. Even if the employer allows the employee to call out sick, because the employer has free reign to set hours and schedules, and also is allowed to protect other workers or managers from illness by telling a sick employee to stay out, the employer could freely tell the employee to stay out for several days after he or she called in sick, to both avoid infecting anyone and to "disincentivize" employees from lightly calling out sick--the employer can make it so employees know to only call out when they *really* need to do so.


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