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Can the boss force you to go home if you're sick?

Dear Evil HR Lady,

My company is about to switch over to "paid time off" (PTO) from a more traditional vacation- and sick-time policy. I'm really unhappy about the prospect of people coming into work sick and (of course!) getting me sick, as well. I know this is a very typical problem with PTO workplaces.

Can you tell me about what employees can do if they are in such a situation?

1) Can I ask my company to remove the sick person from the workplace?

2) Is the employer required to remove the sick person from the workplace, as it is now (somewhat) unsafe?

I'm a pretty healthy person, so I should gain a few bonus days because of my relatively good health. I just HATE it when people come in sick, and I know that when we convert to PTO it will be even worse.

I'm not a big fan of PTO precisely because it not only encourages people to come in sick, but also because if you do use those days for sickness you're punished by not being able to take your vacation. And I'm a huge fan of employees using their vacation days for actual rest and relaxation.

Can an employer send you home and charge your PTO bank? I put this question to employment attorney Bryan Cavanaugh, who said:

Yes, an employer can require you to go home because of hacking, sneezing, runny nose, congestion, coughing, and/or vomiting. If we are talking about a common cold, flu, or seasonal allergies, then the company has the right to manage its workforce by excluding sick employees, even if they are ready, willing, and able to work. 

Giving employees paid time time off is generally not required by law (some places in California do have laws, but it isn't the norm). That means companies can generally make their own rules. Plus, if you're sick enough to qualify for protection under the Family and Medical Leave Act or the illness causes a disability covered by the Americans with Disabilities Act, then this advice doesn't apply. (They have their own sets of rules.) 

And just because they can send you home, doesn't mean they must send you home. Cavanaugh said:

Just because an employee is physically able to perform the job does not mean the employer must allow it. An employer can control the safety of its workplace and is required by [the federal Occupational Safety and Health Administration] and state workers' compensation acts to provide a safe workplace for its employees. This does not mean that allowing an employee to work near a co-worker with a cold would violate OSHA or other applicable law, but employers should be guided by those laws' principles of creating and maintaining safe and healthful workplaces. Absent some strange circumstance, catching a common cold or flu from a co-worker will not be serious enough to be covered by workers' compensation laws or to violate OSHA.

It make sense that an employer wouldn't want to send home everyone who showed signs of being contagious. Colds last around 8-9 days. And with many illnesses (including some really nasty ones), you're contagious both before and after symptoms appear. We certainly don't want a policy of sending people home because they appear healthy. 

Additionally, there are times that even the most germophobic of us want our coworkers to come to work. When I was doing training, if I called in sick it was a huge problem -- people had traveled from other states to come to my class, so it wasn't like we could just say, "Oh, we'll do this tomorrow!" And while there were other people who were capable of delivering the training, they weren't prepped for a particular session's work, so the students got training that wasn't tailored to their needs or even up to date. (Because, let's be honest, even with someone being cross-trained to do your job, they aren't as up on things as you are.) Plus, someone else had to take over whatever the substitute had scheduled for the day, meaning my absence would have caused a bit of havoc. (When you're teaching a class, you can't just put everyone on pause while you do a two-hour meeting.)

As long as whatever ailment I had wasn't fatal, all involved preferred that I come in and just wash my hands frequently and sanitize the computer keyboard after I was done.

I think you'll agree with me that there are some days in which you'd prefer that your co-workers also came in sick. Sometimes, as long as the person can climb out of bed, you want her there. 

If you're an exempt employee, the employer can dock your PTO if they send you home, but if you're out of PTO, they can't deduct your pay. If you're classified as a non-exempt employee and have run out of PTO, they don't have to pay you.

And even though we tend to think of businesses as these greedy entities that would rather their employees work themselves to death rather than show compassion to the sick, there are many jobs in which the last thing a company wants is for their workers to to show up on the job ill. Sales, for instances. (Would you buy a car from someone who kept having to run to the bathroom? Me neither.) Also, if you're a nurse in the newborn nursery, the rules should be stricter than if you're a night watchman who works alone.

The bottom line is, yes, you company can send you home. But it doesn't have to, and sometimes it will and sometimes it won't. So make sure you wash your hands so you can use your PTO for fabulous vacations instead of alone time with your toilet bowl.

For further reading:

Zero tolerance for tardiness in the workplace
Is your coworker ill or just gaming the system?
Can I ask an employee why he is going to the doctor?

Have a workplace dilemma? Send your questions to

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