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BusinessColumnistsJamie Herzlich

With flu widespread, it can pay to send sick employees home

As long as policies are clear and consistent, experts say employers are within their rights to tell workers not to report if they could infect others.

Employers need to be clear and consistent with

Employers need to be clear and consistent with their policies regarding employee illness. Photo Credit: Getty Images / iStockphoto / Antonio Guillem

This is shaping up to be a tough flu season with widespread flu activity being reported in almost every state.

Given that, containing the spread of germs in the office is critical, especially when you see a sick employee who may be better off at home.

While sending a sick employee home is always an option, employers need to be clear and consistent with their policies to avoid any issues.

“You need to be uniform in how you treat employees, otherwise you could open yourself up to a discrimination claim,” says Jay Starkman, CEO of Engage PEO, a Fort Lauderdale, Fla., professional employer organization providing human resources outsourcing to small and mid-sized businesses.

For example, if one employee has certain symptoms that warrant your sending him home, then the next time another employee displays similar symptoms it would be prudent to send her home as well, he says.

With that said, generally there’s no legal restriction prohibiting an employer from sending an employee with a cold or flu home, he says.

And employers shouldn’t hesitate to do so if they think a worker could be contagious, says Starkman, noting “employers have an obligation to keep a safe workplace.”

They can’t always rely on an employee’s judgment.

In fact, a past survey by NSF International, a Michigan-based public health and safety organization, found that four in 10 American workers said they have come to work sick because they have deadlines or would have too much work to make up when they return to the job after a sick day.

“The key is to use reasonable judgment,” says Avrohom Gefen, a partner at Vishnick McGovern Milizio in Lake Success.

You can generally tell when an employee is sick enough to warrant sending him home, he says.

Of course, some hourly employees may show resistance to being sent home because they’ll lose pay for the day, but it’s still the employer’s right to send them home, he says.

Sometimes it pays to have a policy regarding sending sick employees home so they’re not surprised when they are asked to go home, he says. It might just say “In the event of an illness, we have the discretion and right to ask employees not to report to work,” Gefen says.

That works as long as the illness isn’t at a level where it might be protected by the Family and Medical Leave Act or the Americans With Disabilities Act, says Doug Rowe, a labor and employment partner at Certilman Balin Adler & Hyman in East Meadow.

A common cold or flu likely wouldn’t qualify as a serious health condition, and the employer could send the employee home, he says.

If an employer has a telecommuting program, procedures should be in place to allow the employee to work from home and get paid for that work, Rowe says.

For exempt employees who are salaried, employers generally aren’t permitted to deduct wages from their salary for absences due to sickness, but an employer can require the exempt employee to use days from his or her bank of paid time off for the absence, Rowe says.

Asking sick employees to stay home can help reduce the spread of illness, but so can educating employees.

Prevention “comes down to following common sense tips,” says Lisa Yakas, a microbiologist with NSF International.

Encourage hand washing, even perhaps putting a reminder in the bathrooms on how to properly wash your hands, she says.

Also encourage employees to disinfect the surfaces they touch with disinfecting wipes and to avoid common areas when they’re sick, she says.

“You may be able to infect others beginning one day before symptoms develop and up to five to seven days after becoming sick,” Yakas says.

Fast Fact:

73%

Percentage of workers who have caught a cold or flu at work

Source: Staples

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