Question: Our policy requires employees to work their last scheduled day before a holiday and first scheduled day after a holiday in order to be eligible for holiday pay. In the past, some employees have called in sick when they were scheduled to work the day before or after a holiday, and have used accrued sick leave to cover the time. With Christmas and New Year’s Day coming up, we’re wondering whether we have to pay them for these holidays if this happens again.
Answer: You might. California, Oregon, and Washington all require employers to provide their workers with protected paid sick leave. California employees (and Washington employees beginning on January 1, 2020) could also be using paid family and medical leave. Meanwhile, the regulations under the federal Family and Medical Leave Act (FMLA) say that you should look at whether the employee uses paid or unpaid time off during FMLA leave, and apply your holiday policy accordingly. If the time off is covered by more than one type of protected leave, you must apply whatever rule is most beneficial to the employee. If you deny holiday pay when employees use their legally protected paid sick leave or paid family and medical leave, it could be considered retaliation. Since the main purpose of the sick leave laws is to allow an employee to take time off for unpredictable illnesses, an employee calling in sick the day before or after a holiday is arguably using the leave as it was meant to be used.
It would be risky to deny holiday pay when an employee is using any type of protected leave. If an employee calls in sick before or after the holiday and doesn’t have any protected sick time left, and doesn’t have any other type of applicable protected leave, you can apply your normal policy to decide whether they still qualify for holiday pay.