Employee Rights Attorney

Mission Viejo, California

Q: The company I work for was recently acquired. I’m an exempt employee and receive four hours’ sick time a month as an accrued benefit, which shows on my pay stub along with accrued vacation under “Paid Time Off.” My sick time balance is 543 hours. I will be laid off when the acquisition is complete. Are they legally responsible to pay the accrued sick time hours, as with vacation hours?

A: “It depends,” says lawyer Don D. Sessions, Mission Viejo. “Employers aren’t normally legally required to pay employees for sick leave. However, if they offer employees paid sick time, to one extent or another, these promises are enforceable, even if it prohibits accrual beyond a year or requires forfeiture upon termination of employment.

“In your case, your employer has allowed you to accrue it from year to year. You may be entitled to payment of the sick time upon termination of your employment if your employer’s policy did not specify or was vague about waiver upon termination.

“And if your employer allows you to use sick time as personal time off or vacation time, the sick days may be treated like vacation time, which is not subject to a ‘use it or lose it’ policy. They apparently include sick time with vacation time on your paycheck. It’s important to obtain a copy of the company sick leave policy and review it, perhaps with an attorney.

“If the stress of uncertainty justifies sick leave, enjoy the benefit while it lasts. In fact, the employer may be more reluctant to lay you off, or postpone it, while you are using your paid sick leave, especially if it was approved by your doctor.”