Every so often a lawyer with a small firm will ask me what to do about providing employees with paid sick days. The practice is much more common in large firms, but many lawyers have come to expect it as a perk no matter how big their firms are. (To be clear, I’m talking about paid-time-off policies, not legally required unpaid leave like the Family and Medical Leave Act.) Many larger firms allow their employees to accumulate and bank their leave, saving it up for a rainy day, as it were. Some have the days expire after a certain time, while others allow the days to survive until the end of an employee’s tenure.

That’s fine at large, wealthy firms, who can well afford to pay people not to work. But what about small firms, where a person’s absence is more likely to have an impact? How many days of paid sick leave should a small law firm’s policy permit?

My answer might surprise you. Not ten days a year. Not five. Not even three.

Zero. Small law firms shouldn’t have a policy of any days of paid sick leave a year.

But before you set your comment phasers to “kill,” give me a chance to explain.…

I didn’t say firms shouldn’t pay people for sick leave; I said that they shouldn’t have policies with a set number of days. Big difference.

Having a set number of paid sick days is a nice idea in principle, but it often has unintended consequences. First and foremost, it creates a bureaucracy that might fly in a larger firm, but that has no place in a small firm. When you create a system with a set number of days and rules about when you can accrue them, when you can use them, and under what circumstances, you encourage employees to game the system. And they will. They will try to maximize their days to increase their vacation time, or cash them out to get more pay, or use them for job interviews. In other words, not use them to be out sick.

Outbreak movie poster

An unintended consequences of sick-leave policies?

On the other hand, having a set limit of sick days might encourage sick employees to come into work when they shouldn’t. Employees who have used up their paid sick days feel pressure to return to the office, turning into host monkeys when they should have stayed home. This is especially common during flu season.

Instead, treat your lawyers and staff like human beings. In case you forgot, human beings get sick from time to time. If employees are sick, send them home. Tell them to stay home until they get better. Don’t have a system that encourages them to come in and go all Patient Zero on you. And that means paying them while they’re out sick.

Some law-firm owners will whinge, “But what if they take advantage of us and abuse the privilege?”

So what? If someone who works for you is so lame that she would fake an illness to steal pay from you, then you’re going to naturally figure out that she isn’t exactly an employee you want anyway. Malingerers tend to be easy to find, and they’ll quickly give you reason to fire them. (Just be careful to avoid a disability-discrimination claim.)

Other partners will worry that the burden of no-limits sick time will overwhelm a small firm, where losing a single person can be highly disruptive.

Again, so what?

A few years ago, my firm’s office manager was seriously injured in a freak accident near her home. She ended up being hospitalized for a few days, then needed to stay home for a couple weeks. In a firm with just four lawyers and one staff person (her), having her out was a huge hassle. But we got by, sharing her responsibilities among the lawyers and occasionally bringing in a temp. I got more than my share of wags saying, “So, you’re answering your own phones now.”

And during her absence, there was no question about paying her. We didn’t have a sick-leave policy with a set number of days. And we didn’t make her use up vacation time to recover, because that’s not what vacation is about. And we never bothered asking for any doctors’ notes about how long she needed to be out. Because we trusted her.

I bring this up not to be self-congratulatory. I bring it up because it was a pain in the neck for a small firm like mine, but we got through it. And after she returned, she made it clear that she appreciated our support. Forcing her to come back early so that she wouldn’t lose pay would have sent exactly the wrong message.

Here’s what it all comes down to. (Warning: I’m going to get all touchy-feely on you, so if you’re the type who gets queasy at that, stop reading now. Or go take a sick day.) A small firm shouldn’t be run like a big business. A small firm should be run like a family. When a family member is sick, the rest of the family takes care of her.

So forget stupid policies like x sick days per year, or restrictive bereavement-leave allowances, or requiring doctor’s notes. If an employee is going to take advantage of your largesse, then you’ll get rid of him on account of his being a lousy employee. But if someone needs some time off to get healthy, or deal with a family member’s illness or death, or handle some other personal situation, your firm should act like a family and be supportive. Save the bureaucracy for the large firms.



Jay runs Prefix, LLC, a firm that helps lawyers learn how to value and price legal services. Jay Shepherd also spent 13 years running the Boston management-side employment-law boutique Shepherd Law Group. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Follow Jay on Twitter at @jayshep, or email him at js@shepherdlawgroup.com.


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