Using Sick Leave to Attend a Protest: Are Employees Protected?

January 26, 2016

Using sick leave to attend a protest is a controversial issue. Employees thinking of doing this should consider the consequences carefully—as sick days exist for a reason: in case of employee illness.

Nonetheless, one can see how, at a time of social turbulence, people are tempted to claim a sick day in order to attend protests. American citizens should be able exercise their rights to peaceful assembly and free speech under the First Amendment. However, joining a demonstration whilst officially on sick leave claimed from an employer is risky business. If the employer finds out, that could very well mean the end of employment. That’s because there are two separate subjects intertwined here: 1. the right to demonstrate and 2. the right to take sick leave.

Example 1: Cops Use Sick Leave

The use of sick leave to attend protests has been the focus of media reports recently. One of the most interesting stories comes out of Memphis, where five hundred cops took leave of work to protest cuts in benefits. The Police Director noted that officers could be punished for failing to comply with policies regarding sick days.

The Law

An employees’ right to take leave and protest is already protected under the legal concept of protected concerted activity. Protected concerted activity gives workers the right to protest without fearing retaliation from their employers. Under the National Labor Relations Act (which is the main statute concerning labor relation in the United States), employees have the right to engage in collective bargaining (or protest) to assert their rights. Protected concerted activity takes place when two or more employees act together (as provided in the Labor Management Relations Act. 29 U.S.C.).

Notably, employees are also able to agitate in this way even if they are not doing so under the umbrella of a union (as held in the 1962 case, Labor Board v. Washington Aluminium Co). Protected concerted activity, although relevant, is a different issue than taking sick leave to protest.

At the federal level, employers are not required to provide paid sick leave. However, many employers do provide it as an employee benefit. Employers generally provide different types of sick day policies, ranging from no paid sick days at all, to paid time off. Georgia also has no law requiring private employers to grant employees either paid or unpaid sick leave. Employees in public employment in Georgia (i.e. school teachers) are entitled to sick leave that is calculated on the basis of working days completed for each month contracted to work.

Example 2: Georgia Teacher Uses Sick Leave

There is history as to whether public employees such as teachers can be punished for using their sick days to attend protests. A history teacher in Georgia was reported to have repeatedly used his sick days to demonstrate against criticism he received for teaching religion is enlightening in 2014. Interestingly, the school reported that the teacher remained an employee and had taken no disciplinary action against him.

The question of whether an employee can be fired for taking sick leave for this aim is undecided. Certainly, public employees may have more scope to take part in protests, such as police and teachers, whilst private business owners might be less lenient for economic reasons. It also depends upon a particular company’s policy, and the relationship between employer and employee. Where an employee has unlimited time for sick leave, however, the employer is placing trust in the employee and it would be better not to abuse it, as it would provide the employer with grounds for termination.

Employees who demonstrate after taking sick leave do not have the protection of the National Labor Relations Act, as noted in Calmex, Inc. However, Reliable Maintenance held that an employee’s unexcused absence to protest against government policy is not protected. Whether an employee will be fired depends on a number of factors. Where an employer does wish to fire an employee for falsely claiming sick leave, they will need to ensure the even application of their policies to all employees.

As employees are not protected under statute, when an employer (public or private) discovers that they have falsely claimed sick leave, they are highly likely to face discipline or be fired.