One of your crew arrives on the job sneezing, coughing and obviously really ill (and contagious!) Can you send him or her home? If so, must they be paid? Another scenario — a worker is caught sleeping on the job. If you don't want to resort to immediate dismissal, is sending that worker home a reasonable (less extreme) alternative? Sending sick or poorly-performing workers home involuntarily can be a legitimate way to handle the situation; however, doing so have serious legal ramifications for employers.
Paid and Unpaid Sick Days
In many companies, non-exempt workers receive no paid time off except for federal and state mandated holidays. In such companies, hourly workers frequently show up to work sick rather than lose a day’s pay. Coming to work sick is also common for employees at all levels in companies that have adopted a paid time off model (rather than designated vacation and sick days) as a means of preserving their precious days off.
However, sick employees represent a potential health hazard to the entire company. As an employer, you generally have the right to send sick employees home. Employees who receive salaries will not be generally not adversely affected on payday unless their illnesses persist long term. Non-exempt employees who have accumulated paid time off can opt to use that time to avoid a cut in pay. However, even if nonexempt employees have no accumulated time off, they may be sent home if they are sick. Employers are generally not required to pay them. However, in certain locations, primarily in California, workers are entitled to paid sick days.
Sick workers may resist being sent home if it means missing a day’s pay or more. However, under the federal Occupation and Safety and Health Act (OSHA) and counterpart state agencies, employers must “provide a workplace free of known hazards,” which includes sending visibly sick employees home, even without pay.
On the other hand, employees who are ill with conditions more serious than a cold or flu may fall under the protection of the Americans with Disabilities Act (ADA) or the Family Medical Leave Act (FMLA). In such cases, it is wise to obtain legal advice before forcing such employees to go home or remain away from the workplace.
One option is to allow sick employees to work from home. This allows employees to avoid losing pay while protecting other employees from possible contagion. However, this is not a practical option for many positions, including technicians. In addition, companies that make such allowances must be diligent about doing so consistently. Allowing Jane to work from home because she’s a good worker, but forcing Joe to stay home without pay because he’s a bit of a slacker is a good way for employers to find themselves in legal hot water.
Suspension versus Retaliation
Bobby is a decent worker but he stretches his breaks. Other workers have noticed and have begun to complain. One day you decide to send Bobby home for the day – without pay. While you may believe that this is a good way to impress upon Bobby that he needs to shape up, you may be setting your company up for trouble.
Employers are allowed to impose reasonable disciplinary actions against employees who miss the mark – including demotion and suspension without pay. However, such policies should be established well before they are implemented. Furthermore, employees should be made fully aware of disciplinary procedures – including descriptions of unacceptable actions and accompanying disciplinary actions – well in advance of being subject to punishment.
Imposing disciplinary action – including sending employees home without pay, in the absence of an established, consistent policy in place could be viewed as retaliation. The potential adverse legal consequences could be severe. The risk is even greater if the employee being disciplined belongs to a protected class.
Guidelines for Sending Workers Home
Although there are no guarantees against adverse legal action, employers can take measures to protect themselves from claims related to sending employees home involuntarily. Two major principles apply: clarity and consistency. Developing a clear policy for dealing with sick employees or worker misconduct provides workers with advance notice of circumstances where they may be sent home. Once a clear policy is in place, applying the policy consistently is a must to prevent accusations of favoritism or retaliation.
Disclaimer: This article provides a general overview of circumstances related to sending employees home involuntarily due to illness or misconduct. It is not intended to represent legal advice. Please consult with an attorney in your jurisdiction who specializes in employment related issues with specific questions relating to your company and its workers.