October 27, 2020

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October 26, 2020

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Rule 6: If You’re Sick, Stay Home – Return to Work in the Time of COVID-19 [VIDEO]

Part 6 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

Simple in theory. Challenging in practice.

While we all intuitively know that we should stay home when we are feeling unwell, a fall 2019 survey suggests just the opposite—that approximately 90% of workers generally “push through” and come to work anyway. The reality is that employees come to work when they are sick for a myriad of reasons: to stay atop long to-do lists, meet production goals, because they think the business would crumble without them, or that somehow taking a sick day and staying home might be a sign of weakness. Given the current environment, there is also the very real financial reality and concern of missing a day’s worth of pay, particularly for those in economically vulnerable positions.

Taken together, this pandemic and the resultant new normal requires us all to recognize and encourage the duty to stay home when sick—now more than ever—while balancing human nature and the economic realities of the moment.

To be sure, the most effective way to contain a disease is to prevent it from spreading to others. Rule #6 is based on this straightforward principle, but its execution is proving to be a challenge. Moreover, the risk profile of this challenge will soon be magnified as we enter an unprecedented and likely daunting period when COVID-19 meets flu season.

How Do You Get the Workforce Back In? Keep Sick Colleagues Out.

Short of an effective vaccine being developed and distributed en masse, THE major hurdle in returning to the workplace and getting back to business is fear: generalized employee concern, if not anxiety, that their presence in the physical workplace itself will unduly expose them to contracting COVID. Leaving accommodation issues to the side for a moment (to be addressed in a later blog post), that concern is reasonable if employees fear that sick coworkers will not adhere to health and safety plans and protocols, health screenings, and basic common sense of staying home when feeling unwell.

Getting the workforce back requires building trust and confidence from the employee population in not just health and safety protocols, but also enforcement of those policies and protocols, coupled with training and education to encourage and keep sick employees out of the workplace.

Encourage Responsible Behaviors through Sick Leave Policy, Education, and Culture

Employees are more likely to stay home when they are under the weather if they feel comfortable doing so. This means employers need to make sure employees are not pressured to come into work. Although shifts to company culture do not happen overnight, employers can affect the workplace environment by educating the workforce about non-punitive leave policies, by instructing supervisors to encourage sick workers to stay home, and cross-training employees so that any one individual’s absence does not materially impact production.

An employer’s policies, informed by evolving law, can reduce the pressure on employees to work when ill. For example, employers can implement a non-punitive sick leave policy and, importantly, actually encourage employees to use it. The sick leave policy may not need to provide paid leave (although employers should be aware of federal, state and local paid time off laws, related to COVID-19 and otherwise, that might apply), but it should be flexible, clearly written, and consistent with public health guidance. A flexible sick leave policy is one that allows employees to stay home to care for a sick family member or tend to children whose schools or childcare is closed. It may also mitigate the economic impact of the decision to stay at home, thereby encouraging usage. Importantly, the sick leave policy should not require employees to offer unnecessary details or personal health information to their supervisors. Additionally, because doctors and health care professionals are busier than ever, employers should consider waiving requirements for workers to provide a doctor’s note to validate their illness, qualify for sick leave, or return to work, if possible.

Educate Your Employees about COVID-19

Navigating this pandemic and returning to work from it requires a team effort. Employees need to be on the alert for signs that they or a close contact may have COVID-19. COVID-19 safety training is now required in several states (including NY and CA) before permitting reentry to the workplace, and as part of that training, employers should ensure their workers know how to recognize COVID-19 symptoms so that they can self-isolate as needed, as well as understand the health and safety plans in place to build trust and confidence in their ability to return to work safely. Additionally, employees should know that COVID-19 and the common flu have similar symptoms and spread in similar ways.

Daily Employee Health Screening

Given the ongoing threat COVID-19 poses to workforces, employers need to be proactive and identify who should stay home. As we discussed in Rule 5: Yes, My Employer Can Do That, employers are permitted to screen employees in accordance with federal and local health guidelines and bar entry to those who show signs of COVID-19. Since daily testing may not be practical or possible, employers should follow CDC recommendations and conduct daily in-person or virtual health checks of employees who are working on-site and physically interacting with coworkers or others before they enter the workplace.

Symptom and temperature screenings can be conducted by employees at home or upon their arrival to the workplace. While there are numerous apps that assist at-home screenings, employers can also provide a simple questionnaire that employees must e-mail to their supervisors before their arrival. Of course, employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the virus when creating their own COVID-19 screening questionnaires.

Employers who opt to implement in-person health screenings should establish protocols to make sure the tests are conducted safety and respectfully. Specifically, the CDC recommends screeners wear personal protective equipment (“PPE”), practice social distancing, and conduct the survey from behind a barrier to minimize the risk of infection. The health screening should also take place in a location and manner that follows social distancing guidelines. Setting up screening stations at multiple entrances or in large areas can help to reduce congestion and keeping the employee health screenings as private as possible may avoid stigma and encourage participation.

Handling Sick or Uncooperative Workers

Knowing whether a worker may be sick is useful, but health screenings serve little purpose if the individual is permitted to enter or remain at the workplace. Fortunately, the EEOC has clarified that employers may take steps to protect workers consistent with CDC guidance, including requiring workers to stay home “when necessary to address the direct threat of spreading COVID-19 to others.” Employees who have symptoms when they arrive at work or become sick during the day should immediately be separated from other workers, customers, and visitors and sent home.

Additionally, employers should bar entry to employees who refuse to have their temperature taken or participate in the employer’s health screening protocols. However, employers should inquire as to the reasons for the refusal, and if a reasonable accommodation is requested, engage in the same interactive process they would for any other request for accommodation under the ADA, Rehabilitation Act, or Title VII (if the request is made based on the individual’s religion).

Finally, communicating expectations to the broader employee population will build trust and confidence that the employer has and will do everything in its power to create a safe and healthy physical workplace as employer reopen for business.

Conclusion

Among other key takeaways, the ongoing COVID-19 pandemic has demonstrated how much our individual choices can affect those around us.

Going to work when sick is not heroic and should not be applauded. Quite the opposite.

Daily health screenings for on-site workers and sending home those who show symptoms or refuse to adhere to workplace safety protocols can help protect a workforce from infection, but creating a workplace culture where employees feel comfortable staying home when they are sick will help protect your workforce now, and even long after this pandemic is over.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 261
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About this Author

Ian Carleton Schaefer Employment Attorney, Epstein Becker,
Member

IAN CARLETON SCHAEFER is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green, and a member of the firm’s National Employment, Labor & Workforce Management Steering Committee. 

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