Question: An employee called out sick the day before Thanksgiving, but our policy says employees must work the last scheduled day before and first scheduled day after a holiday in order to receive holiday pay. Can we deny him the Thanksgiving holiday pay?
Answer: It depends on whether the employee is using protected paid sick leave or protected paid family and medical leave for the absence. If they are, it’s risky to deny the holiday pay. If an employee is absent before the holiday and isn’t using any protected paid leave, you can typically apply your normal holiday pay policy. For each of these two situations, you should take a consistent approach for that situation, depending on whether the absence before or after the holiday is protected by law.
California, Oregon, and Washington all provide employees with protected sick leave. They also provide paid medical leave for employees’ off-the-job serious health conditions, although only Oregon and Washington offer job protections. Denying holiday pay could be considered retaliation if an employee calls in sick before or after the holiday and uses protected sick leave or paid medical leave to cover the time missed.
If the employee is using unpaid leave under the federal Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), or Oregon Family Leave Act (OFLA), you’ll need to look at your policy. If you would pay the employee for the holiday if you took FMLA or these other state laws out of the equation, you’ll likely need to do so now. For example, if your policy is to provide holiday pay when an employee uses vacation the day before the holiday, and an employee uses vacation during FMLA leave for a serious health condition the day before the holiday, then the employee taking FMLA should be treated no differently than anyone else taking a vacation day before the holiday. Contact your Vigilant Law Group employment attorney before denying holiday pay for an employee who is using any protected leave so you can weigh the potential risks of a retaliation claim.
