Our non-exempt employee has no sick or vacation days left and has accrued absentee attendance points close to termination. Because of this, the same employee is coming into work while sick. We don’t want the health of other employees to be at risk because of his/her presence. Can an employer force a sick employee to stay home, without pay, to recover from their illness?
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Thank you for your inquiry regarding barring a sick employee from reporting to work.
For purposes of this inquiry, we will assume the employee’s illness is not serious enough to warrant protected leave under the FMLA or protection as a qualified disability protected by the ADA. However, if the employee’s illness is serious and/or recurring, you may wish to review the FMLA and ADA just to ensure that the employee is not entitled to protected leave or reasonable accommodation under those laws.
So, assuming that the employee’s illness is not covered by the above laws, employers generally have the ability to keep their workplaces safe and healthy by sending apparently sick and/or contagious employees home (or asking them not to report to work in the first place). As the employee is nonexempt, then he/she would not need to be compensated for time not worked.
The important factor here would be to apply this policy equally to other employees under similar circumstances now or in the future.
For example, you note that this employee is close to termination due to her absenteeism and that this is the reason she is reporting to work while sick. If this employee is allowed a short-term, unpaid leave of absence to recover from her illness, then you may be required to offer the same accommodation to employees in similar situations in the future, rather than applying your already-established attendance/absenteeism policy.
Additionally, you will need to set and apply consistent parameters and/or reasonable judgment for sending sick workers home (or preventing them from reporting to work). This can be difficult, as some illnesses are contagious before and after symptoms are present. Similarly, some symptoms of contagious illnesses such as colds and flu are comparable to those of noncontagious ailments such as seasonal allergies.
Depending on the employee’s role, the severity of the illness, and the practicality of doing so, an alternative consideration may be to permit the employee to work from home while recuperating. This allows the employee to continue to complete productive work and to avoid accruing further absentee points, but without exposing other colleagues to illness.