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Working with Sick Employees—What Are Your Rights—and Theirs?

With flu season peaking this month, you may be wondering what rights you have to control the workplace and its culture when employees might be sick. Do you encourage employees to go home when they are coughing and sneezing—even if they don’t want to? Do you intervene if your employees “sick shame” their peers, or do you consider it acceptable?

Historically, employers have often worried more about employees taking off when they were not sick than refusing to go home when they were. Now, they face the opposite quandary—workers say they cannot afford to be sick without paid leave or personnel don’t want to get behind on their work or miss sales by staying home. Yet, employees who are coughing and sneezing cause disruption and fear in the workplace, and that reduces everyone’s productivity.

Best Practices for Sick Workers

OSHA stipulates that employers must provide a workplace free from serious recognized hazards. Even the flu can fall into that category, based on its severity, and other more serious diseases can mimic the flu. Employers could be liable for damages if they tolerate a “direct threat” in the workplace, such as a sick worker with a serious disease. Furthermore, statistics show that “presenteeism” – the practice of employees working when sick – costs the U.S. economy 10 times as much as absenteeism.

To minimize workplace disruption, management must intervene when apparently sick employees come to work. If they think the worker is ill, they should ask them to go home until they are well. Of course, “how sick is sick” can be a judgment call, and applying the guidelines isn’t always easy. Marathon recommends that its clients err on the side of caution, protecting themselves and their staffs by following guidance from respected federal agencies:

  • OSHA recommends employees stay home if they are sick.
  • The CDC recommends personnel stay home for at least 24 hours after a fever ends.
  • Coughing and sneezing can be symptoms of illness or allergies, and a doctor visit will pinpoint the cause. No employee with symptoms consistent with infectious illness should work unless they provide a clearance letter from their doctor.
  • When illness is not obviously due to a common infection, and especially for employees with serious or chronic illnesses, like cancer, employers should avoid probing too deeply about medical conditions. Anything else could put the company afoul of the Americans with Disabilities Act.

Sick-Shaming. It’s Real, and Really Inappropriate

Finally, even if an employee is sick in the workplace, sick-shaming is never appropriate. It could be construed as bullying, and employers who tolerate it could be setting themselves up for a lawsuit. If a worker complains they are being bullied for appearing sick—or for any reason—employers must take the complaint seriously.

It’s also wise to ensure that these three points are communicated in some form to all employees:

  1. No form of bullying will be tolerated in the workplace, including “sick-shaming.”
  2. The company does not support infectious disease in the work environment.
  3. If an employee suspects a peer has an infectious disease, they must report it to their supervisor as soon as possible and allow management to take appropriate action.