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Sick of Sick Employees? Can You Send Them Home?

At this time of the year when the flu, strep throat and other illnesses are making their way through our children, friends and society in general, it is good for employers to be mindful of their options, but more importantly to plan ahead for employees who come to work visibly ill.  While many people want to “tough it out” through an illness, the reality is that by toughing it out an employee may in fact be compromising the health of others and decreasing the productivity of an entire workplace.  The time to ask what to do about such an employee is not when the employee sits down at his/her desk at the start of the work day or takes his/her place on the assembly line.  Rather, the best time to consider how to handle these inevitable situations is well before they occur.

The best time to address the issue of sick employees is when the employer sits down and adopts its employee handbook and its policies and procedures which will govern the workplace.  An employer should have clear policies and procedures as to how to deal with illness and ensure that its policies comply with applicable state and federal laws regarding illness.  In general, employer policies regarding illness and sick leave should be clear, and they should be consistently applied so that one’s employees know what to expect.  Many employers chose to address this issue by permitting their employees a number of sick days in addition to their normal paid time off.  If an employee has sick days, then if that employee comes to work ill, the response should be clear.  That employee should be allowed to use their sick days, within the confines of the company policy.  It is not improper to have an employee use their sick time for its intended purpose.

In larger employers such policies naturally bleed over into Family Medical Leave Act (“FMLA”) issues.  The FMLA permits eligible employees to take extended periods of time off work to address qualifying conditions.  In the case of illness, FMLA leave is an option, provided other eligibility requirements are met, in situation where the employee has “a serious health condition that makes the employee unable to perform the essential functions of his or her job.”  In such instances an employee may take up to 12 workweeks of leave in a 12-month period.  Employers can require employees to use up any accrued paid time off time they have to cover time taken off under the FMLA.  Additionally, the FMLA permits employees to take intermittent leave to address long term health conditions as they arise, and intermittent leave creates additional issues which are not addressed herein.  But for short-term conditions such as bronchitis, strep throat or even the flu, FMLA leave is usually not the issue due to the temporary nature of the illness.  Rather the controlling factor is what the company’s internal policy is.

Additionally, in some industries the nature of an employee’s duty understandable determines what the policy must be.  For example, an employee who comes to work sneezing and with a runny nose should not be allowed to take part in food preparation.  If the employee needs the hours and the pay, then surely that employee can be allowed to switch their shifts with other employees or to make up their time later.  Neither should a nurse with the flu be allowed to interact with at-risk patients.  An employer can control the safety of its workplace and, in fact, is required to in certain instances by operation of OSHA and other applicable law.

So in conclusion, the best time to plan for a sick employee is before that employee is sick.  If you have a plan in place and employees knows how his/her employer will handle illness then bouts of the flu, strep throat and the like should be able to be handled with minimal workplace disruption while working to ensure those employees who are not ill, stay that way.

Luke Wingfield

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal law and does not constitute legal advice.

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