Aug 19th 2013
Question: Can you force an employee to go home who is coughing, sneezing, hacking and has a runny nose? The employee is out of sick leave but has vacation leave available to use. The employee is exempt.
Response: We are not aware of any reason why an employer cannot seek to send home an employee who reports to work obviously and visibly ill if management reasonably believes that the health and safety of that employee or other employees may be at risk. Under federal and state occupational safety and health laws, employers have a duty to ensure the work environment is safe and healthy, and this would presumably include taking measures to ensure that employees who report to work obviously ill and possibly contagious are asked to leave the premises so as not to risk infecting co-workers, and/or to not return to work without a fitness-for-duty certificate from their doctor (if this is consistent with company policy).
Admittedly, there may be variances in the application of a policy to send home sick employees if each manager or supervi¬sor has discretion to determine whether an employee is too ill to be at work or otherwise a risk to the health or safety of others. In this regard, managers and supervisors should be given basic instructions and parameters regarding application of the policy to ensure it is applied as consistently as possible throughout the organization.
Note that, when an employee is reasonably sent home from work, then if the employer has a paid time off (PTO) or sick leave policy that provides payment to employees who are out sick, we are not aware of any reason why it could not require use of the policy in this situation (unless there is a governing contract, regulation or policy to the contrary). Also, we are not aware of any law that prohibits sending an employee home as explained above even if the employee has no PTO or sick time.
There is no duty to pay a non-exempt employee for time away from work if he or she has no accrued paid time off benefits (including sick leave) to utilize. Exempt employees must be paid in full for any partial day worked, even if there are no sick leave or other paid time off benefits, and this would include any day he or she is sent home early.
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