Health and Wellness: We Have a “Presenteeism” Problem; Can We Send Sick Employees Home?

We sometimes have employees who appear to be sick. We say, hey, maybe you should go home for the rest of the day. They say, oh, no, I’m good, and they go back to work. We suspect they are hanging on because they don’t want to use their sick leave. But I don’t want them around infecting everyone else, and they aren’t accomplishing much anyway. Are we running afoul of any laws if we make them go home? Could there be any ADA issues? — Michael, HR Manager in Bakersfield

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Not surprisingly, most HR professionals can commiserate with your plight. According to the 2006 CCH Unscheduled Absence Survey, 56 percent of employers reported that “presenteeism,” when sick employees show up for work, is a problem in their organizations, up from 39 percent just two years ago. Another recent survey conducted by Harris Interactive and sponsored by Kronos Incorporated found an overwhelming 98 percent of 1,000 full-time employees surveyed have gone to work when they were sick. The study noted many reasons sick employees come to work, including: a heavy workload, saving their sick or paid time off time for family emergencies or sick children, and the desire to receive a bonus for perfect attendance.

Employers are permitted to protect employees in the workplace from the risk of communicable diseases such as influenza. More and more employers are sending employees home who are visibly sick with a cold or flu. If the employee is unproductive because of his or her illness, say so and send the person home. But what if you have an employee who is regularly fatigued and you encourage them to go home to get caught up on some rest? The employee may have a disease or may feel you are regarding him or her as disabled and thus trigger some protections under the federal Americans with Disabilities Act (ADA) or state Fair Employment and Housing Act. So, be cautious about who you tell to go home.

Attendance Incentive Programs

Also problematic are incentive programs that reward employees who do not take sick leave. While I do not believe attendance should be rewarded (why pay an employee for doing what is minimally required?), many employers favor such programs.

One of the downsides of attendance incentives is that a sick employee will not stay home unless the illness is so severe the person cannot function at work. (And once employees miss enough work to be ineligible for the award, they may become lax in their attendance because the incentive is gone.)

For employers who want to give attendance incentives, consider revising your program to reward employees on a quarterly basis as opposed to yearly. This way, an employee who is sick in the first quarter of the year but has good health the remainder of the year would still be rewarded for the majority of the year.

Additionally, consider a little flexibility with your sick leave policies. If you have a policy that only provides 6 sick days per year and then disciplinary action kicks in on the 7th day, you may inadvertently be encouraging presenteeism. An employee who has to use up all of his or her sick days when laid up with the flu in January will have no choice but to come in to work sick at any other point during the year. I think having policies that are so absolute—such as 5 sick days then on the 6th you are terminated—is a bit rough.

Consider some flexibility when managing your workforce during flu season. Flexibility is hard to define, but essentially I would give employees some time off without pay, let them take an advance on sick leave, or allow them to borrow sick leave from someone else (if you have a policy that allows employees to donate their sick leave).

Keeping Your Workplace Healthy

Here are some other tips to keep sickness out of your workplace:

1. Establish guidelines that spell out when employees should stay home—such as when they have a fever or bad cough or are so ill they cannot concentrate.
2. Allow telecommuting.
3. Encourage managers to be good role models and stay home when they are sick.
4. Create a culture in which employees feel comfortable about taking time off if they are ill.
5. During high-risk times of the year such as flu season, increase janitorial services to daily disinfect kitchens, bathrooms, doorknobs, and light switches.
6. If employees come to work sick, encourage them to be mindful and considerate of co-workers by not sharing telephones, computers, and desks; frequently cleaning surfaces with antibacterial cleansers and wipes, washing hands often; and keeping tissues readily available.

Allison West is principal of Employment Practices Specialists, an employment law training and consulting firm in Pacifica.