sick day punishment

[brawnwyn]

We live and work in Minnesota

My husband works for a national waste disposal firm. Two weeks ago, he called in sick. This was the first time he has called in sick in 2 years of employment.

Today, he was notified that he will receive a "safety demerit" for the absence. The drivers are allowed 12 demerits per year before termination. He was required to take a vacation day for his absence. Is the demerit system, in this case, legal? Can it be used against him for termination? He is already docked 2.5 hours per week for required lunch breaks and we cannot afford another cut.

Thanks for your assistance.

 

[cbg]

Please explain further. Are the demerits used for any absence, or only unexcused absences? It will make a difference to the answer. In addition, please explain whether or not the company offers any sick days, what reason you were given for their decision, and whether or not your husband was actually sick when he called in (I'm not making accusations but there are plenty of people who call in sick when they feel the need of a "mental health day" - I'm not saying there's anything wrong with that necessarily but it's important to know the true facts in order to determine what happened here.) Finally, please explain about the breaks. Are you saying that he has worked through lunch but is getting docked for it, or simply that he would prefer to work through lunch but that the company is demanding that he take the breaks?

 

[brawnwyn]

From what I can tell, there is no sick leave for the drivers. The only handbook we have is a DOT handbook, which does not address this issue. He was ill will a stomach virus...as he is hourly he tries to never lose an hour of work. These demerits for illness are a "new policy" (he just called from the road to tell me that he was told this this morning and that his file would be noted). Demerits are normally restricted to safety violations...i.e. traffic tickets, consumer complaints, etc.

All drivers work through their lunch breaks. To do otherwise results in too much time taken to complete their routes and an additional demerit. The 2.5 hours are deducted from their salary regardless of whether they eat or not. Another driver attempted to have his lunch break at the shop 30 minutes before clocking out but was told he had to take the break on the road. It's an odd little place.

 

[cbg]

I don't know DOT regs, so someone else will have to tell you if they are being violated. Here's what I'm getting from it:

1.) There is no requirement that sick days be offered; therefore there is nothing illegal about their requiring your husband to use a vacation day. In fact, if sick days are not offered, I'd be extremely surprised if they didn't require that the vacation day be used.

2.) The demerit system as you describe it is not illegal per se. IF either FMLA or ADA was involved (neither is involved in your husband's case) they might have to make certain exceptions to either offering demerits for absences, or for automatic termination after twelve. But with that caveat, it seems to be legal unless something in DOT regs says otherwise. As your husband's illness does not qualify for either FMLA or the ADA (assuming that either your husband or the company is covered under the mandate) there is nothing illegal about their giving him a demerit for the absence.

3.) The forced docking is another story. They ABSOLUTELY MAY NOT dock him for his lunch break unless he actually takes one. They may require him to take a break; in fact, MN law requires that they give him a 30 minute lunch break. However, if he works through the break he MUST be paid for it. Failure to do so is a violation of both MN and Federal law. Violations can be reported to the MN Department of Labor.

 

[brawnwyn]

Thanks very much for your reply. We absolutely do not mind using a vacation day for a sick day. I was curious as to how a safety demerit could be used for an illness, as I'm hardpressed to see whose safety was affected. However, as there is no illegality involved, we will learn from the new policy and move on.

The lunch break issue is convoluted. I understand what you are saying. The company, I believe, thinks that by automatically docking pay you will be more likely to take the break ("I'm paying for it, I may as well take it"). That said, I'm very interested to hear otherwise. I will do further research with my state office.

Thanks again.

 

[cbg]

The demerits don't have to equate safety - many employers have a demerit system for absences. If they are used for either absences or safety or both, that's still legal as long as they are consistant with the usage.

 

[brawnwyn]

Yes, I understand what you are saying.

However, they are strictly called safety demerits and there has never been a demerit penalty for illness prior to this week. I hope that clarifies things a bit. We were just a bit taken aback by the policy change with no warning.

Thanks again for your speedy response.