4 Sick-Leave Practices to Avoid During the Coronavirus Pandemic

Government officials are urging sick workers to stay home and employers to have flexible leave policies during the coronavirus pandemic. Don't let business pressures and reliance on past practices lead you to make bad decisions about attendance and leave policies during the public health emergency. Here are four mistakes employment law attorneys said businesses should avoid.

1. Being Inflexible

Many employers are understandably worried about the business impact of COVID-19, the respiratory disease caused by the coronavirus. They might be tempted to adopt inflexible sick time or general attendance policies to keep people coming to the workplace in an effort to maximize productivity, said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. "But it's a mistake to adopt an inflexible policy that would pressure a sick worker to come to the office," she noted.

Under Occupational Safety and Health Administration (OSHA) rules, employers have a duty to protect employees against known hazards in the workplace. "If one does not already exist, develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19," OSHA said in its Guidance on Preparing Workplaces for COVID-19. 

The guidance noted that workers might be absent because they are sick or caring for sick family members, need to care for children whose schools or day care centers are closed, have at-risk people at home, or are afraid to come to work because they think they'll be exposed to the virus.

[SHRM members-only sample policy: Infectious Disease Control Policy]

"Don't make employees feel pressured to come in when they shouldn't," Mastroianni said. If employees feel sick or think they have been exposed, they should be told to stay home. "We don't want to wait until someone is actually diagnosed."

Under OSHA rules, employees who reasonably believe they are in imminent danger can't be fired for refusing to come to the worksite. But what if an employee just doesn't feel comfortable reporting to work?

"Be more flexible with existing policies," said Susan Kline, an attorney with Faegre Drinker in Indianapolis. Employers should also consider providing additional sick time for instances of actual illness. If someone can't work from home, decide if offering paid time off is possible.

Some employees may take advantage of a flexible leave policy, Mastroianni said, but the employer's potential for liability is significant if employees are required to report to the workplace when they should stay home.

The analysis could be very fact-specific, and employers may want to contact a lawyer before denying time off.

"For a lot of companies, it's a challenge," Kline said, "because they want to be supportive but also don't know how big this is going to get."

2. Applying Policies Inconsistently

"Employers may choose to relax certain procedures set forth in sick-leave policies under extenuating circumstances, such as the current outbreak," said Jason Habinsky, an attorney with Haynes and Boone in New York City. "However, it is critical that employers apply any such modifications uniformly in order to avoid any claims of discrimination or unfair treatment." 

For example, if an employer chooses to excuse absences for or to advance paid time off or vacation time to employees as a result of a COVID-19-related illness, the employer must be certain to do the same for all employees who are absent under similar circumstances.

"This requires employers to ensure that all decision-makers are aware of any temporary or permanent modifications to sick-leave policies to maintain consistency," Habinsky said.

3. Ignoring Leave Laws

All sick-leave policies must comply with applicable state and local paid-sick-leave laws, and these laws may require employers to provide leave for COVID-19-related absences. Although employers may be required to provide leave, they should note that many laws allow employees to decide when to use it.

Employers must also avoid forcing a sick employee to perform services while out on leave, Habinsky noted, as this may constitute interference or retaliation under certain leave laws, such as the Family and Medical Leave Act (FMLA). In fact, employers must avoid taking any actions against employees that could be construed as retaliation in violation of the FMLA, the Americans with Disabilities Act, and applicable state and local paid-sick-leave laws. 

"This could include any form of discipline in response to an employee's use of sick time or request to use sick-leave time," Habinsky said. "Likewise, to the extent employees are performing services while working remotely from home, they must be paid for time worked in accordance with applicable federal and state wage laws consistent with their classification as exempt or nonexempt."

Laura Pasqualone, an attorney with Lewis Roca Rothgerber Christie in Phoenix, noted that many paid-sick-leave laws prohibit employers from requiring a doctor's note unless the absence is for at least three days. But requiring a medical certification at all could further burden emergency rooms and urgent care facilities and could expose employees to more germs, she said.

The U.S. Centers for Disease Control and Prevention (CDC) has urged employers not to require employees to provide a doctor's note to verify their COVID-19-related illness or to return to work.

4. Failing to Actively Encourage Sick Workers to Stay Home          

According to the CDC, employers should actively encourage sick employees to stay home by:

• Telling employees to stay home if they have symptoms of acute respiratory illness, a fever of 100.4 degrees or higher, or signs of a fever. Employees should be fever-free for 24 hours without the use of medication before returning to work.
• Urging employees to notify their supervisor and stay home if they are sick for any reason.
• Ensuring that the company's sick-leave policies are flexible and consistent with public health guidance and that employees are aware of the policies.
• Making sure contractors and staffing agencies inform their employees about the importance of staying home when ill and urging business partners not to reprimand workers who need to take sick leave.
• Not requiring employees with acute respiratory illness to provide a doctor's note to verify their illness or to return to work, since health care providers may be overwhelmed with requests.
• Maintaining flexible policies that allow employees to stay home to care for a sick relative.

"Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual," the CDC said.

[Visit SHRM's resource page on coronavirus and COVID-19.]