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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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we have an employee who is scheduling an elective bunion surgery

Customer Question

we have an employee who is scheduling an elective bunion surgery and is requesting sick paid leave for this. We'd like to ask her to take vacation instead is this leagal in California?
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.

Good morning and thank you for entrusting me to answer your question. I will do everything I can to assist you.

California law does not require employers to provide paid sick leave to their employees. However, if an employer chooses to offer sick leave, a contractual obligation arises to pay such time off in accordance with the policies and guidelines the employer establishes for taking such leave.

If you have a written policy which limits sick leave to "medical necessary" procedures, or to "emergencies," then arguably this employee does not have a contractual entitlement to take sick leave and can be forced to use their vacation. However, in the absence of an express policy limiting the right to take sick leave under the present circumstances, the default presumption in California is that an employee may take sick leave for any medical condition resulting in "incapacity," regardless of whether that condition is self-induced through an elective procedure.

Put simply, since employers need not provide sick leave, they can implement policies which restrict its use to "medically necessary" procedures. However, in the absence of such an express policy, the default presumption is that sick leave, if offered, is available any time an employee suffers from a medical condition resulting in incapacity.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

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