With the outbreak of the coronavirus dominating headlines, it is a great time to dust off the company policy on dealing with flu season and infectious diseases, generally, in the workplace. Contagious diseases are particularly troublesome subjects for companies because of the varied circumstances and cultures on the wisdom of working through a sickness. Some managers reward employees who “tough it out” and show up under the weather, while other company cultures encourage sick employees to work from home or stay away altogether. Similarly, some employees may have the luxury of taking a sick day, while others may not be able to suffer a loss of income. No matter where a company comes down on these important questions, there are lots of significant related legal issues that should be considered in formulating an HR strategy.
Can an employer require a sick employee to leave work? Generally, the answer is yes, as long as such a policy is applied consistently and without discrimination. Of course, forcing an employee to leave work may impact their pay, especially if they are paid hourly, and could raise morale and operational issues that should be addressed.
If the employer requires an employee to leave work early, must the employee be paid? If nonexempt — meaning the employee is entitled to overtime pay by the Fair Labor Standards Act (FLSA) — the general answer is no. For exempt employees, who are not entitled to overtime pay, the employee must be paid if the employee performs any work that day, and the employer cannot make a partial day deduction.
Can the employer force the employee to use PTO for a compelled absence? In the absence of a state/local law or collective bargaining agreement to the contrary, yes, an employer may require an employee to use any accrued paid leave if the employee is absent because of sickness.
Can an employer compel an employee to get a flu shot? Many employers encourage or facilitate employee flu shots, and some states have laws compelling vaccination of health-care workers. Compelled vaccinations outside the health-care industry are rare and any employer considering such a policy should take into account concerns that may be raised by employees, such as religious or medical reasons for refusing the vaccine.
What if an employee refuses to come to work or travel to an infected workplace? The Occupational Safety and Health Act may protect an employee who refuses to work based on a good faith fear of exposure to a contagious disease. Employees with compromised immune systems or other medical issues may also be entitled to reasonable accommodation in the form of an alternate work arrangement in the event of an outbreak. Accordingly, any discipline of an employee refusing to work should be approached carefully and with the assistance of legal counsel.
With all of these answers, it is important to note that individual facts may differ, and requirements under local or state laws and collective bargaining agreements might impact the ultimate analysis. For these reasons, it is helpful to have a game plan in place before an outbreak occurs, so that the company can carefully consider these nuanced issues.
David Barron is a labor and employment attorney with Cozen O’Connor.