Infectious? Please, Just Go Home!

Dentons Davis Brown

The world can be a scary place. There are risks that you can control, like whether or not you take up bungee jumping or alligator wrestling, and risks you can’t control, such as whether or not someone runs a red light or if your cubemate has the flu.

As an employer you can, however, mitigate some risks for your employees. In a flu season dubbed an “epidemic” by the CDC, employees get concerned when the hallway is filled with the sounds of sneezes. Employers should create a culture where an employee who is genuinely ill with a fever or other indications of a contagious disease understands that he or she should stay home. It is simply in the best interest of fellow employees, as well as the company as a whole, if the employee stays out and does not infect fellow workers.

Some absenteeism policies, particularly where there has been an abuse of time off, may be structured in a way that employees will choose to come in to work sick rather than face a “point” or get in trouble. In a chronic flu season, it is probably time to brush off your Communicable Disease Policy and evaluate whether or not an employee should be at work. Don’t forget, you can send an employee home if you think he/she is in violation of your policy or otherwise poses a risk of infection.

Employees who exhibit a high fever and similar symptoms should not be at work, regardless of your classification system. Flu or diseases like measles may also implicate leave under the Family and Medical Leave Act (FMLA) and this should always be assessed.

One way to promote appropriate sick leave use, and comply with the law, would include unscheduled absence “point” or “occurrence” exemptions for specifically designated issues such as high fever in the flu season. This does not have to be permanent and can focus on current issues. One year it might be whooping cough and the next the flu. Point systems always need to take into account FMLA based absences as well as ADA/ADAAA issues. Discipline is not appropriate for a properly designated FMLA absence.

The National Hockey League (NHL), facing a Mumps epidemic, benched some of its best players when they were ill and mandated Mumps boosters. The NHL understood one sick player could take down a whole team.

While this isn’t a necessary response for the average employer, you do need to evaluate communicable disease and the culture your company has in regard to when employees should and should not be at work. Here is the policy we use at Davis Brown Law Firm. While one size doesn’t fit all, take a look – and don’t let one sick employee infect fellow workers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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