Wednesday, November 5, 2014

You’re Sick – Go Home

What do you do about the employee who comes to work sick? The coughing and sneezing is not only making everyone else in the workplace cringe and rub sanitizing lotion on their hands, but if everyone catches this virus, how will the work get done?

Employers struggle with how to manage their workforce during cold and flu season. On the one hand, employers typically encourage good attendance and praise the dedication of employees who come to work even though they feel under the weather. On the other hand, nobody wants to be around someone with a bad cold or flu; aside from the fact that colds and flu are very contagious. For every “trooper” who works through an illness, many more will stay home until fully recuperated.

It’s Okay to Send a Sick Employee Home

First of all, employers have the obligation through state and federal regulation and often by collective bargaining agreement, to provide a safe work environment. This can include contagious disease. In order to protect the safety and health of the workforce, an employer can send an employee home who reports to work with an obvious illness.

The trickier question for employers is often whether an employer has to pay an employee that has been sent home because they are sick. The answer is simply no; an employer does not have to pay a non-exempt employee who reports to work sick and is sent home. Exempt employees may present a different issue.

Unless a policy or collective bargaining agreement provides otherwise, If either a non-exempt or exempt employee has accrued sick or paid time off, an employer can deplete this benefit to pay an employee who has been sent home sick. Similarly, unless agreed upon otherwise, if either an exempt or a non-exempt employee has no sick leave, but has accrued vacation leave only, an employer can deplete vacation time.  Non-exempt employees can be docked pay if they have no accrued benefit time.

Employers should beware of how they treat exempt employees when they send them home because they are sick. Generally, with only limited exceptions, when an employer docks the pay of an exempt employee it creates the risk of destroying the exempt status. An employer can safeguard against that risk by continuing the pay of an exempt employee who is sent home but has no benefit time to use in lieu of working.

Similarly, if consistent with policies or collective bargaining agreements, it may be appropriate to require a return to work note from the employee’s doctor. Finally, employers should remember that employees who are sent home sick may also be FMLA eligible. Employers should determine whether circumstances warrant placing an ill employee on conditional FMLA leave.

While employers may appreciate the efforts of employees who want to work through a bad cold or the flu, it is important to protect the rest of the workforce as well. If the flu spreads to a number of employees, it can bring business to a halt. When that business is serving the public, this can be even more difficult, resulting in those well employees to work overtime to pick up the slack. Employers should consider being proactive and send sick employees home until they recuperate.