Title: Sick Pay to be used?
I’m being bullied at work…it’s been going on for a long time. My boss knows and HR knows, it’s an…odd…situation, and I keep getting asked to be patient. I think 12 years is enough.
I took today off as another Mental Health day, and told them, these Mental Health Days should no longer count against my Sick Days…circle back to “be patient”…12 years. I was denied.
Any rights to fight them, any law I can site?
Hi there,
It sounds like there are a number of issues you’re asking about, including bullying, your use of sick days, and possibly discrimination on the basis of mental health problems. I’m also assuming you’re employed by a private business in California. Is my understanding here correct?
The applicable laws depend on a number of factors, including the size of your employer, the motivations for their actions, and the number of hours you work.
Sick Days
Based on the title of your question, it sounds like your main concern is whether you can use paid sick days that you have accrued for a “mental health” day that might not technically involve an illness. Is that right?
California’s paid sick leave law requires employers to grant an employee’s paid sick leave request for two purposes:
- The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
- For care related to certain domestic violence, sexual assault, or stalking issues (which sounds like they don’t apply to your situation).
(Labor Code § 246.5.)
Your employer can limit your use of paid sick leave that you’ve accrued to 24 hours or three days each year. And, if the need for the sick leave is foreseeable, you need to provide reasonable advance notice. (Labor Code, § 246.)
If you have a legitimate, diagnosed existing mental health condition, or a medical professional has advised you that you need time off to prevent a legitimate mental health condition, then the law would seem to be on your side here. But, if your mental health day is just a pretext to take a day off and relax, you probably do not have a right to demand that your employer grant your request to use paid sick leave.
There may also be other considerations, like whether you are entitled to unpaid leave under CFRA or the FMLA. But, without knowing the specifics of your situation, I can’t be sure.
Your employer’s obligations might also depend on whether you’re exempt or non-exempt, and whether your absences were partial days or full days. There are a lot of factors that probably go beyond the scope of this Q&A section. It might be worthwhile to hire an employment attorney to advise you on this matter.
Bullying
In general, workplace bullying is prohibited if it is motivated by certain unlawful reasons. Those reasons include things like your race, your religion, your gender, your sexual orientation, your disability, and some other protected grounds. (Gov. Code, § 12940, subd. (j).)
Workplace bullying can also be unlawful if it involves things like physical threats or unwanted touching. In those kinds of cases, the behavior of your coworkers may even be criminal. (See, e.g., Penal Code, §§ 242, 422.)
If your coworkers are just being mean to you for no reason, that likely would not rise to the level of unlawful bullying. They need to be motivated by something the law protects.
But, if your coworkers are bullying you for unlawful reasons and your employer knows about it, your employer has an affirmative duty to take immediate and appropriate corrective action. (Cal. Code Regs., tit. 2, § 11019, subd. (b)(4).) If they do not, they might be breaking the law.
You deserve a safe workplace, free from unlawful bullying, harassment, or discrimination.
Disability Discrimination
You mentioned that you requested a “mental health” day. If you have a qualifying mental health condition, you may be entitled to additional legal protections. (See Gov. Code, § 12940, subd. (a).)
Perhaps most importantly, your employer may be obligated to provide you with a reasonable accommodation for your disability. In some cases, that can include rearranging your job duties or permitting you to take time off.
If, for example, your coworkers’ actions are causing you to experience clinical depression or anxiety, it is possible your employer must take steps to prevent that. The appropriate accommodation, however, will vary from case to case. We explain disability discrimination laws in detail in our article: Disability Discrimination Laws in the California Workplace.
Workers’ Compensation
One final thought is this: If you have sustained a mental health injury due to workplace bullying, it is possible that you are entitled to file a workers’ compensation claim. I don’t practice workers’ comp., so I don’t know for sure. But it might be something worth exploring.
Anyway, I hope this information helps. Please remember that this information does not constitute legal advice and should not be relied on. Nor does it create an attorney-client relationship.
I wish you the best of luck in your situation!