Imagine that you sit down at your desk first thing in the morning and hear a most unwelcome sound - coughing. Healthy employees then start coming into your office, wild-eyed, whispering words like “outbreak” and “epidemic,” and demanding the day off. Cautiously, you call the sick employee in. He explains that he’s not contagious” or that he’s been very careful to keep any germs under control. He also reminds you that he’d love to go home, but he’s all out of PTO, and can’t afford to give up the pay. What are your options and what laws do you have to watch out for?
- The Family and Medical Leave Act (FMLA)
Your employee is probably eligible for mandatory medical leave under the FMLA - eligible for up to three months of noncontinuous time off in any given year, continued insurance benefits during that period, and a guaranteed return to his position or a similar one once he’s been rehabilitated. Importantly, the FMLA requires employers to substitute vacation time or other paid time off for an employee’s requested medical leave (or at least to give employees the option of requesting that substitution,) but if all PTO is exhausted, then the FMLA does not require that you pay the sick employee.
- The Americans with Disabilities Act
Your employee might be able to seek protection under the ADA, especially if he is chronically ill. Protected employees generally must be provided reasonable accommodations for their particular disability, with certain exceptions. The most applicable exception for this situation is that the ADA will not force an employer to put any employee, (including the sick employee,) in harm’s way. You also don’t need to take on any undue hardship in accommodating a protected employee. So it’s usually a safe bet to send home an employee who is feverish or appears otherwise contagious, and to even require a doctor’s note explaining that that employee is okay to return to work.
- The Civil Rights Act (Title VII)
Any time you single out a particular employee, even if you think you have a very justifiable business reason for doing so, you should make doubly sure that you’re adhering to a universal, nondiscriminatory employment practice or procedure. For example, it could be age discrimination to send home a forty-year-old feverish employee, while permitting a younger employee with the same ailment to stay for the rest of the day. It’s recommended that you have clear procedures in place, and that you strictly adhere to them unless you have a very good reason for a reasonable deviation.
You must also follow any policies and procedures in your employee handbook.
What does this all add up to? An employer is generally free to send an employee home if that employee is unable to work, even with reasonable accommodations or for general safety reasons. While you might not be required to pay employees who go home sick, you might consider accommodating them by letting them bring work home, or incentivizing them by letting them make up the hours at some later date.It is important to keep your priorities straight. While the rest of your employees probably won’t be able to pursue you in court for catching the flu from a coworker, (it would be very difficult to prove that,) you certainly don’t want a sick or unmotivated team. So long as you stay within the restrictions of the three laws discussed above, and your employee handbook, you should not hesitate to send sick employees home to protect them and everyone else.