Provided by: Judge Ruth B. Kraft

Now that the holidays are over, the media is reporting on another season: flu season! Illnesses raise a conundrum from employers. The truth is that a sick employee should stay home, rest and, especially, stop spreading the virus to others! But, on the other hand, you may find yourself short-staffed and frustrated by absenteeism. And, to make things worse, if your sick leave policy provides that workers have to “use it or lose it”, that means that they have started 2014 with no sick days in the bank to draw upon. Here are my suggestions to get you through flu season:

ENCOURAGE EMPLOYEES WHO ARE SICK TO STAY HOME! When someone who is sick comes to work, they honestly don’t get much done----other than spreading the illness to others and feeling febrile. Allowing a sick employee to come to work will not do much other than resulting in more employees becoming ill and calling out sick. Remember that if an exempt worker comes to work, even for an hour, you may not dock their pay under the wage theft laws.

SPECIAL ISSUES FOR MEDICAL PRACTICES: Pursuant to NYS Department of Health and Joint Commission guidelines, among others, a worker in a medical practice with a contagious disease should not be permitted to work, even if precautions (surgical mask and/or gloves) are provided. Hold an in-service for your staff and make it clear that, if they come to work coughing and sneezing, they will be sent home.

REVIEW YOUR SICK LEAVE POLICIES: I take a different tack than many employment lawyers. I am not a fan of “use it or lose it” in its entirety. I suggest to my clients that two or three days of unused sick leave should be carried over to the following calendar year. This will give workers the days when they honestly are likely to be ill; otherwise you can expect those fake coughs just in time for Christmas shopping!

REVIEW YOUR ATTENDANCE AND CALL-IN PROCEDURES: Again, your employee handbook can be your best friend or your nemesis. Have you read it lately? What does it say about calling out sick? Your policy should state how long before the start of a scheduled shift the employee needs to notify the employer of the intended absence, how to report (by email, voice mail or direct contact) and the consequences of a multiday absence. You should have a clear policy requiring medical documentation for absences of three or more days. Your handbook should also provide for discipline should an employee fail to follow the established procedure. Are you following your own procedure? If not, this can have serious consequences in the event that you discharge a worker for violation of an employer policy. You need to believe in and comply with your own manual.

DON’T FORGET ABOUT ADA, FMLA AND PROTECTED CLASSES! Sure, the flu can strike everyone, even workers who have had flu shots when an unusual strain of influenza arises unexpectedly, but it can have more serious consequences for workers with serious health conditions. They may have protections under the Americans With Disabilities Act and/or the Family and Medical Leave Act. FMLA permits intermittent leaves for unforeseen absences related to medical condition. My strongest recommendation is that, if you think that someone is taking advantage, don’t act precipitously and create the basis for litigation. Call me to discuss what steps we can take to protect your interests while being cognizant of applicable statutes.

Have a question or comment?
Contact Jennifer at or at (516) 747-6700 x. 302.