Can “Too Many” Sick Days Be Reflected Poorly on an Evaluation?

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Question: Under federal law, can I give a person poor marks on an evaluation if he/she is taking excessive sick days? I have an individual who is absent almost a month out of the year for sick days for the employee’s illnesses or for the employee’s children.

Answer: This is one of these questions with many angles, many implications. We could talk about various laws such as the Family and Medical Leave Act, or about sick leave policies, or whether this employee is considered salaried-exempt under the Fair Labor Standards Act and how that determination bears on the question.

But we’ll stick to whether there is any federal law prohibition per se about giving someone a negative evaluation for using “excessive” sick days. First, does “excessive” mean the employee is violating company policy, e.g., by taking off more time than is allowed? If so, then the employee’s evaluation can reflect that the employee is not following company policy.

Of course, one might ask why an employee is permitted to take more time off than the employee has available. If on the other hand, the employee is taking a lot of sick time, but has not exhausted his or her available time, then criticizing him or her on an evaluation would seem ill-advised since the employee would be in compliance with company policy.

From a more purely legal perspective, the risk in citing medical concerns in an evaluation is that under the federal Americans with Disabilities Act (which applies to employers with 15 or more employees), “disability” means not only someone who is disabled, but also someone who is “regarded” as disabled. Also, someone who is “associated” with someone who is disabled may be protected by the ADA; this is where caring for the sick children comes into play. Thus, focusing on sick time as a negative in an evaluation risks an ADA complaint.

However, if reference to the employee’s time off is made without citing the medical reasons, and is cited strictly with regard to how the time off affects performance, then at least there is an argument that the critique is based solely upon the problem of time off and not because the time off is caused by medical problems.

DISCLAIMER

This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at
504-585-0220 or by email at brooke.duncan@arlaw.com.

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Posted In: Legal