The holiday season is behind us, but we are still in the thick of cold and flu season. It seems like everyone you pass on the street or stand next to on the bus is sneezing, coughing, or blowing their nose. With so many people sick, it’s not surprising that many people have also encountered the same sneezing and coughing from a colleague who is sick but came to work anyway.
When sick employees come to work, it can have a significant and detrimental impact on the employer because the sick employee is likely to be less productive than normal and, more critically, he or she risks spreading the illness to other employees, thereby reducing their productivity and/or requiring them to miss work to recover.
Below are answers to common questions that employers must navigate, particularly during the winter months.
Can I send a visibly sick employee home from work?
Yes, an employer can require an employee to go home if the employee is showing signs of a contagious illness (such as sneezing, runny nose, coughing, and/or vomiting). This applies even if the employee does not want to leave work. Employers should consider including in an employee handbook or relevant personnel policies or procedures language confirming the right to remove sick employees from the work environment.
Of course, particularly during cold and flu season when many employees may be exhibiting signs of lingering illness, employers will likely only choose to send employees home in extreme cases. Therefore, employers must ensure they are acting in a non-discriminatory and non-retaliatory manner in sending an employee home, and be consistent in what level of severity is required before the employer takes action.
Finally, where an employee has a more serious illness than a common cold or stomach bug, employers should confer with an attorney or their human resources department before sending the employee home, because such employees may have rights under, for example, the Family Medical Leave Act (“FMLA”), the California Family Rights Act (“CFRA”), the Americans with Disabilities Act (“ADA”), and/or the California Fair Employment and Housing Act (“FEHA”).
Am I required to send a sick employee home?
Possibly, under certain circumstances. Under the California Occupational Safety and Health Act, employers are required to maintain safe and healthful working conditions for employees. It is highly unlikely that exposure to a colleague with a cold or flu would violate this law, but it is possible that allowing an employee to be exposed to a more serious communicable disease by a allowing a sick employee to remain at work could be a violation.
Similarly, it is unlikely that a cold or flu contracted at work would be serious enough to be covered by workers’ compensation laws, but employees who contract more serious communicable diseases may be entitled to workers’ compensation benefits as a result.
I have a number of employees out with the flu. Are they entitled to FMLA/CFRA leave?
Possibly. If the flu constitutes a “serious health condition” under the FMLA/CFRA for a particular employee, he or she would be entitled to take FMLA/CFRA-protected leave (assuming all of the other prerequisite conditions were met). The flu may be a “serious health condition” if:
- The employee is unable to work or perform other regular daily activities for three consecutive calendar days; and
- The employee requires treatment from a healthcare provider twice within 30 days and/or requires continuing treatment under the supervision of a health care provider.
Though the flu alone is unlikely to constitute a “serious health condition” for most employees, certain populations (i.e., people over the age of 65, pregnant women, people with compromised immune systems) are at a higher risk of experiencing complications that could become serious.
What else can I do to keep my employees healthy during cold and flu season?
It is critical that employees know that they are expected to utilize their sick leave when necessary, to go home if they fall ill at work, and to stay home when they are sick. Managers can encourage compliance with these expectations by setting a good example. Some employees may fear that taking sick leave will be construed as laziness or a lack of commitment to their duties. Seeing that managers take leave to recuperate when they are sick should help alleviate those fears. Conversely, if employees see that their managers come to work when they are sick, employees will believe that they are expected to do the same, regardless of the guidance they have been given.
And when all else fails, turn to the wisdom that is repeated every year in effort to prevent illness from spreading: get your flu shot, wash your hands often, and cover your mouth!