Q. I just started working at a small consulting firm in Virginia that caters almost exclusively to the government. They have an unusual sick-leave policy that I have not encountered at previous jobs. If you take time due to an illness, you simply have to make up the time when you return, which amounts to no paid sick leave at all. Making up the time is flexible as to when the work can be done, but is this legal?

A. Diane A. Seltzer, a Washington lawyer who has represented employers and workers, said she has never heard of a company requiring its workers to make up the time they took off when they were sick. "It's certainly an unusual policy," she said. "I have seen companies where they'll allow you to make it up in lieu of losing a day of pay."
But, Seltzer said, "there's no violation of any law because companies are not required to give you any sick leave or any benefits at all."
She said a more common corporate policy is to not pay workers for the time they take off or to allow but not require them to make up the day if they would rather not lose a day's pay.
Seltzer said she sees several problems with this company's policy. When workers have been at the firm for more than a year, they may be covered by the Family and Medical Leave Act, which has no provision requiring that missed work time must be made up, Seltzer said.
Moreover, Seltzer said that making up lost time may be impractical and may conflict with other laws allowing workers time off for a day of rest.
Finally, Seltzer said that an employee who is sick and then works more than 40 hours in succeeding weeks to make up the lost time would be eligible for time-and-a-half overtime pay unless he or she is exempt by law from the federal overtime pay provisions.

© Copyright The Washington Post Company, September 19, 2004