Every employer at one time or another must deal with employees who get sick. Typically, employees who are under the weather take time off to visit a doctor, or stay home for a few days until their health improves. But what if an employee chooses to report to work even though they are clearly ill? Some employers wonder if asking an employee to go home is appropriate or even legal. Here are some factors to consider before sending home an employee due to illness.
What does the law say?
The bottom line is that an employer can tell an employee that they cannot come into work even if the person wants to work. OSHA recommends employees stay home if they are sick and the CDC recommends staying home until at least 24 hours after a fever ends. In most states, an employer can ask for a doctor's note stating that the employee can return to work. However, employers must not pry into the employee's medical condition to keep in line with ADA requirements on privacy.
Keep in mind that the rules that apply to the common cold do not apply when dealing with a "serious illness" covered by the ADA and FMLA. Therefore, before sending someone home for a serious disease or condition (for example, cancer or mental health issues), you should consult with your HR Consultant.
In some cases, rather than asking someone to stay home when they are sick and not work (which may mean an employee will not get paid) consider asking individuals to telecommute. If feasible, this is a good alternative. Just remember, as the employer, you must be consistent with who you send home and who you allow to telecommute.
Company policy and pay
Unless there is a company policy in place that promises pay to employees for health-related absences, hourly, nonexempt employees need only be paid for actual hours worked, (under the FLSA). Nonexempt employees paid a salary may fall under different rules. Generally, exempt employees must receive a guaranteed weekly salary regardless of the number of hours they work during the week. However, pay for full-day absences due to illness can be deducted when the employer offers a sick leave plan and the employee is not yet eligible for or has used all of their paid sick time benefit.
Depending on the work environment, an employee who comes to work sick may pose potential safety and liability risks. Follow safety policies in place to reduce risk and liability issues. Consider if the sick employee: (1) is having issues performing their duties; (2) may pose a risk or danger to themselves while performing work duties; (3) is required to travel on behalf of the company; (4) poses a risk to coworkers and/or customers; or (5) is not capable of leaving work premises and getting home safely on their own.
On the flip side, if employees have safety concerns and provide reasonable justification to think that their work situation presents an imminent and serious danger to their health (such as in a flu epidemic), they can excuse themselves from working and cannot be retaliated against. Without a reasonable basis for this however, an employee must report to work. Conditions such as seasonal allergies and the common cold don’t escalate to a "direct threat" under the law.
Set a healthy example
It is in everyone’s best interest for sick workers to simply stay away from work until they get better. The best way for managers to discourage the ‘hero employee’ from showing up for work when they should be at home getting well is to walk the talk. The supervisor who goes against the advice they give to others—coming to work even when they are sick--- can unwittingly send the message that regardless of illness, leaders or truly dedicated people always show up for work.
With flu season upon us, remember to set a good example. Be well, stay well and encourage your colleagues to do the same.