Wednesday, October 28, 2015

We Don’t Want You Here Like This

Maybe employees just don’t want to be accused of “faking” sick, or maybe employees don’t want to squander their PTO while they’re actually sick when they want to use it for recreation and relaxation, but the phenomena of employees reporting to work when they’re really and truly ill seems to be growing. A Huffington Post article from a few years ago reported the results of a survey that found nearly 80% of the American workforce has reported to work while they’re still contagious. If dedication is the motive, then it should be commended, but no matter the reason, they shouldn’t always be allowed to stay.

The quickly approaching flu and cold season is a good reminder for employers to brush off their policies about reporting to work when ill. Just because an employee reports to work doesn’t mean you have to allow them to stay if they’re ill and likely contagious. In fact OSHA and some state counterparts require employers to provide a workplace free of known hazards, and allow employers to send employees home  until they are recovered who are visibly ill and possibly contagious. This not only protects co-workers, but the ill employee as well.

Okay, that’s good, but what about paying the employee that you just sent home? Absent language in a collective bargaining agreement or another kind of employment contract to the contrary, an employer has every right to withhold pay for the time not worked or to require the employee to use their accrued benefit time for non-exempt workers. Exempt workers might be a different matter.

While exempt employees can also be made to use accrued benefit time, if they have none, forcing an exempt employee to go home without pay could call their exempt status into question  unless their unpaid absence is  the result of a “bona fide sick leave plan, policy or practice of providing wage replacement benefits” as stated in the DOL regulations to the FLSA. 

A bona fide sick leave plan, policy or practice of providing wage replacement benefits has been described by the DOL as a plan, practice of policy that  provides a reasonable number of absences on account of sickness without loss of pay. So, if you have a sick leave policy which provides this benefit and your exempt employee has exhausted his or her benefit time, you can send them home without pay as well. 

Employers are advised to establish a policy on sending ill employees home until they recover. This diminishes the risk of claims that sending an employee home because of illness was a pretext for barring the employee from the workplace for a discriminatory reason. Although illnesses and symptoms can vary from person to person, consistency in application of this type of policy is also wise as you hope that the sick worker will return to work recovered and thankful for the rest.