Cough, Cough… “I think I’m Getting Sick!”

Summer is gone and the change of weather is readily apparent. With the change of weather comes employee coughs, sneezes, sinus infections and the like. Might be a good time to remind employees about your call in procedures relative to calling in sick. Most employers do have a procedure indicating who to call and how long to call in before the scheduled start time. Usually these procedures indicate to call in each day of illness with a potential return to work date.

If the employee is going to be out for more than three days, the procedure often calls for a doctor’s note. This is not an HIPAA issue as HIPAA regulates those who provide personal heath information, not those who ask for it. ADA does not prohibit employers from asking for doctor’s notes to verify the use of sick time.

The doctor’s note should indicate when the employee saw the doctor, when the employee is medically able to return to work, and that the employee is fit to return to work. Your policy should not ask for a specific diagnosis as it might elicit information about a disability which would violate the ADA.

If an employee comes to work sick, can you send him/her home? The answer to this is “yes.” There is no law preventing employers from sending a sick employee home and deducting the time from eligible sick leave or PTO. Just beware of how you pay or not pay the employee if he/she has used up all sick time. Exempt and non-exempt employees may be treated differently under the Fair Labor Standards Act (FLSA).

If an exempt employee has exhausted sick leave, and you send her/him home for the day (or she/he leaves of her own accord), you are required to pay the employee for the full day. If this employee is out the full day following the day you sent her/him home, you do not have to pay for that full day. If the employee is non-exempt and exhausted her/his sick leave, you do not have to pay for the remainder of the day, nor any other time she/he is out sick until additional sick time is earned.

The above information is provided for informational purposes and is not to be considered legal advice. Questions, call Larry Elinskas at 804-966-8100.