The U.S. is in the height of flu season, which means employers are likely to see an influx of employees coughing, sneezing and spreading germs in the office. Aside from passing a box of tissues, employers may be wondering what they are legally permitted to do when their workers get sick.
One benefit that is becoming increasingly relevant is paid sick leave. Several cities and states — including Arizona, California, Connecticut, Massachusetts, Chicago and others — have paid sick leave laws on the books. But while many companies offer paid sick leave as a benefit, there is no federal paid sick leave law. Paid sick leave laws may remove some incentive for sick workers to report to work, making the illness less likely to spread to the rest of the workforce.
But paid sick leave laws do place limitations on employers. For example, companies cannot make taking a paid sick leave day contingent upon the employee finding someone to cover their shift. Depending on the law, employees don’t always need to give notice of their absence before their shift begins, which could make scheduling difficult. Some laws limit an employer’s ability to ask for a doctor’s note.
Employers do, however, have some latitude when it comes to requiring employees to stay home from work or sending them home if they show signs of illness. Employers just need to be careful not to cross any lines set by the federal Americans with Disabilities Act or a state fair employment statute. This means steering clear of conducting medical examinations or making a disability-related inquiry.
According to the U.S. Equal Employment Opportunity Commission, employers should avoid taking an employee’s temperature. This is considered a medical examination by an employer, which is generally prohibited except in limited circumstances.
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They should also avoid asking employees to disclose whether they have a medical condition that could make them especially vulnerable to complications from influenza or other common illnesses. Doing so would likely violate the ADA or state laws, even if the employer is asking with the best of intentions. Employers also cannot require workers to get a flu shot, according to the EEOC.
Employees could have a disability that prevents them from taking the influenza vaccine, which could compel them to disclose an underlying medical condition to their employer to avoid taking the shot. Additionally, some employees may observe religious practices that would prevent them from taking the flu vaccines. Thus, requiring an employee to take a vaccine could lead to a violation of Title VII of the federal Civil Rights Act of 1964 in addition to the ADA.
Beyond these limitations, employers can take these proactive steps to keep the workplace healthy.
Ask employees if they are symptomatic. In determining who should go home or not report to work, employers may ask workers if they are experiencing flu-like symptoms. This would not rise to the level of a medical exam or a disability-related inquiry, according to the EEOC.
Advise workers to go home. Employers can order an employee to go home if they are showing signs of the flu. The EEOC says that advising such workers to go home is not a disability-related action if the illness is like the seasonal influenza.
Encourage workers to telecommute as an infection-control strategy. But keep in mind that the company could be establishing a precedent for telecommuting as a reasonable accommodation in other circumstances, such as for an employee recovering from major surgery who cannot come to the workplace.
Encourage flu shots. Employers may encourage — but not require — employees to get flu shots. For example, a company can invite a healthcare professional to the workplace to administer flu shots at a discounted rate or free.
Employers may require its employees to adopt certain infection-control strategies, such as regular hand washing, coughing and sneezing etiquette, proper tissue usage and disposal, and even wearing a mask.
The ADA, Title VII, state fair employment laws and paid sick leave statutes are also incredibly nuanced. Moreover, it’s important to balance the mandates of OSHA, which require employers to maintain a safe working environment. Before taking any significant actions, employers should consult with an employment attorney or HR professional for guidance.
