The above question was posed to me by a participant in the Free Legal Service Program that I operate for the Independent Insurance Agents of Georgia. In light of the beginning of flu season, which according to some reports may be a bad one, it is likely that many employers will have to deal with this situation. The short answer to the above question is Yes. An employer actually has a legal duty to provide a safe working environment for its employees. Requiring a sick employee to go home and thereby, avoid the possibility that they will infect other employees would be consistent with that duty.
The only potential problem with an employer requiring a sick employee to go home arises if the employer is subject to the federal employment discrimination laws, i.e., has 15 or more employees. If such an employer has not required other sick employees to go home in the past and the sick employee in question is protected by those laws, there could be a claim of unlawful discrimination, if requiring the sick employee to go home would have an adverse effect on the employee. Such an effect would occur if the employee’s pay was affected by being sent home.
If the sick employee who is sent home is not exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”), the employer is only required to pay the employee for the time they actually worked. Thus, a sick non-exempt employee would only be entitled to payment for the time they were at work. They would lose pay for the time they would have been at work if the employer had not told them to go home. Such an employee may have an unlawful discrimination claim if they were sent home and other sick employees were not.
If the sick employee is exempt from the FLSA’s overtime pay requirements, the employer cannot reduce their pay for the time they missed at work. Such an exempt employee must be paid for a full day’s work regardless of how long they were at work. However, if the employer has a practice or policy of granting paid leave for employees who are sick, the employer can require that the employee make use of such paid leave for any time they miss work due to illness or injury.