Donating Sick Leave, Quirky Question #2

Quirky Question # 2:

One of our employees is quite ill, with a very serious illness.  She has used up all of her sick time.  She is well liked and several of her co-workers want to donate all of their sick time to her.  Are there any downsides to allowing these employees to donate their sick time?  Are there any downsides to disallowing these sick time donations?

Dorsey’s Analysis:

Proposed donations of sick time constitute a magnanimous gesture and are to be commended. But they raise a number of potential problems for the employer that should be considered before the sick-leave donations are approved. Set forth below are five questions an employer should consider when evaluating these types of requests. Like many employment issues, it is far better to think these issues through in advance, rather than addressing them only after a specific situation (and corresponding potential problems) have arisen.

First, what will the employer do if one of the employees who has donated all of his/her sick time also becomes ill or is in an accident? Will the employer simply insist that the sick time has been used up and force the employee to take a leave without compensation? How long might this unpaid leave last before the absences would affect the employee’s continued employment?

Second, as one of the Reader Responses reflected, you need to examine whether any employees are being pressured into “donating” their sick time by friends of the employee who is ill? What if the employee who “encouraged” others to donate their sick leave is a manager? Someone with hiring/firing responsibility? If an employee did not agree to “donate” his/her sick time, would their be any adverse consequences for that employee?

Third, what if the employee who is sick is herself a manager with disciplinary authority, or hiring and firing authority? Would employees being requested to “donate” sick-leave time to this individual feel comfortable rejecting this request?

Fourth, what precedent is the company establishing with regard to the Americans With Disabilities Act? That federal statute requires, in certain circumstances, that employers make “reasonable accommodations” to individuals with disabilities, assuming that the employers can do so without suffering an “undue hardship.” Would the additional leave provided to the sick employee be compelling evidence by a disabled employee in a similar job that allowing someone in this position additional compensated time off was a “reasonable accommodation” that did not cause the employer an “undue hardship?”

Fifth, is the employer creating risks for discrimination litigation if another employee also becomes ill, uses all her sick time, and then turns to the company to obtain additional sick leave from her co-workers? What if the company approved the extended leave for the first employee (based on the donated time from other employees) but, for valid reasons, rejected the extended leave opportunity for the second employee, who happened to fall into a protected class?

The motivations underlying the sick time donation idea are admirable. Perhaps the company will conclude that regardless of the potential for some of the types of problems identified above, those risks are outweighed by the generous and compassionate attitudes and behaviors being fostered by the sick-leave donations. But, an employer should be aware that this approach may lead to potential problems. These problems should be considered in advance, before they actually arise, so that the employer and the employees alike know how alternative situations will be handled. When these issues are considered carefully, the company may find that an alternative approach is preferable, perhaps by assisting the employee through the already existing short-term or long-term disability programs available at the company.

Readers’ Responses:

Response # 1: Why wouldn’t you want to encourage employees to help each other?

Response # 2: On the surface, leave donation appears to be a great idea and they appeal to a great many. However, such programs breed ill feelings over the long haul. When you allow employees to donate leave, many develop the expectation that sometime in the future, it will be returned when needed. This is rarely the case and hence, the ill feelings start to develop.

Without intention, employees often experience undue pressure to donate, even when they don’t want to. It is similar to the feelings of a United Way campaign. The intentions are good; however, some employees believe in donating in other ways and can feel pressure from peers and supervisors to donate.

There are also the situations where employees abuse their leave, then find themselves in a position of needing more leave, so again employees may feel pressure to donate leave even though the employee could have avoided the situation by being more responsible.

Finally, there is the fairness issue. Who will be in charge of requesting donations and will the vigor in solicitation be the same for everyone?

As you can tell from my reasons listed, I have always been against leave donation programs. However, to ensure an individual is not left out in the cold, short-term and long-term disability plans should be considered and added to the benefits plan. These programs are one of the tools that can be used to keep ill feelings out of the workplace.

Response # 3: My experience with sick leave donations is that they create a nightmare issue for the tax folks in the payroll deparment. There are tax issues relating to passing along sick days and other paid vacation days from one employee to another. This illustrates another reason why our company will not allow these types of leave donations.

Dorsey & Whitney

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