If an employee comes to work sick (as in the flu, fever, vomiting, etc.), do we have the right to send that employee home and make them use their Paid Time Off (PTO)? Or are we obligated to paying a sick employee if we decide to send them home?
Answer from the experts at HR.BLR.com:
Thank you for your inquiry regarding barring a sick employee from reporting to work or sending sick employees home.
For purposes of this inquiry, we will assume an 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 an 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 an 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. If the employees are nonexempt, then they would not need to be compensated for time not worked. Alternatively, as proposed, you may also suggest or require the use of banked PTO to cover the missed time.
If the employees are exempt, then you also are permitted to require the use of PTO for the missed time. Do note that employers are generally not permitted to deduct wages from an exempt employee’s salary for absences due to sickness or disability. However, deductions from a leave bank (or, if leave has been exhausted or is not yet available, deductions that are otherwise made in accordance with a bona fide PTO or sick leave plan, policy, or practice of providing compensation for loss of salary occasioned by sickness or disability) are permissible.
The important factor here would be to apply this policy equally to other employees under similar circumstances now or in the future. 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.