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Bona Fide Sick Leave Plan Policy

Authors: Michael Cardman, XpertHR Legal Editor, and Allen S. Kinzer, Vorys, Sater, Seymour and Pease LLP

When to Use This Plan

An employer may make deductions from the salary of an employee classified as exempt under the Fair Labor Standards Act (FLSA) for absences of one or more full days that are caused by sickness or disability only if the employer has a "bona fide plan, policy or practice of providing compensation for salary lost due to illness." See Employee Compensation > Employee Classification > The Salary Basis Test.

Neither the FLSA statute nor its interpretive regulations offer employers any guidance about what constitutes a bona fide sick leave plan. The U.S. Department of Labor's Wage and Hour Division (WHD), the agency responsible for enforcing the FLSA, has acknowledged that "there is no bright-line test articulating how many days and how short a waiting period are required for a plan to be bona fide." However, WHD has issued opinion letters approving leave plans that offer at least five days of sick leave per year after an employee has completed at least one year of service as bona fide. See Wage and Hour Opinion Letter FLSA2006-32, dated September 14, 2006.

In the event of a lawsuit, a court is not bound to defer to these opinion letters. However, most courts give DOL opinion letters considerable weight. In other words, employers may be reasonably confident that a sick leave policy providing five or more days of sick leave per year to employees who have completed at least one year of service will be found to be "bona fide," but there is no guarantee.

Customizable Policy