Employers, Are You Prepared for Cold and Flu Season Absences?
Written By:
Ashley Whitney
Associate, Employment Law
awhitney@csglaw.com | Bio
With cold and flu season around the corner, New Jersey employers need to be prepared for the inevitable uptick in employee absences. Employers should make sure to have policies in place that will help effectively and legally manage employee illnesses. While examining their policies, employers may be asking:
- How much paid sick leave are employers required to give employees?
- Can employees work from home instead of using a sick day?
- Do employers have to offer the same remote work opportunities to all employees?
- Is COVID-19 still a workplace concern?
How much paid sick leave are employers required to give employees?
Under the New Jersey Earned Sick Leave Law, employers must provide covered employees with up to 40 hours of paid sick leave per benefit year. Employers have the option of providing all 40 hours to their employees at the beginning of the benefit year or requiring their employees to accrue time at a rate of no less than one hour for every 30 hours worked. Employees may use their leave because they or their family member needs preventative care, diagnosis, treatment, or recovery time related to a mental or physical illness, injury, or health condition. Employees may also use leave to attend school-related conferences, to seek assistance related to domestic violence or if their employer’s business closes due to a public health emergency.
Employers may require up to seven days advanced notice of an employee’s intent to use earned sick leave when the need for leave is foreseeable and may require employees to give notice as soon as practical when the need for leave is unforeseeable. Employers also may require employees to provide documentation when they use earned sick leave on three or more consecutive workdays. However, employers cannot require an employee’s health care provider to specify the reason the leave is needed.
If there is a concern an employee may be misusing or abusing sick leave, it is best to seek the advice of counsel before disciplining or terminating that employee.
Can employees work from home instead of using a sick day?
The popularity of remote work has risen following the pandemic. Currently, more than one-third of American workers spend at least some of their regular workweek working from home, and one survey found that 68 percent of employees working remotely would rather quit than return to the office.
The increased frequency of remote work has blurred the lines between home and work, which may complicate employers’ monitoring of employee sick leave. Indeed, employees may wish to work remotely rather than using a leave for various reasons, including saving the day for use should they suffer from serious illness or not wanting to fall behind on work.
Employers may allow employees to work from home rather than use sick leave but may not require an employee who requests to use sick leave to work remotely instead, and should be aware of some areas of concern:
- Compliance with the Fair Labor Standards Act (FLSA) and State and Local Wage and Hour Laws: Nonexempt employees must record and be paid for all time worked while they are working remotely, making timekeeping systems or protocols crucial to ensure accurate tracking of employee’s work time while working remotely.
- Compliance with the Family and Medical Leave Act (FMLA): Employers must notify employees with qualifying reasons of their right to utilize FMLA leave, or other leaves protected by state or local law, making it important for an employer to know whether employees are using sick leave or working from home.
- Compliance with the Earned Sick Leave Law: Employees are entitled to utilize earned sick leave for qualifying reasons and attempts to curtail use or retaliate against employees for such use is illegal. Employers must inform employees of their right to use sick leave and ensure that employees who work remotely do not feel pressure to work while sick rather than using a sick day because they believe that the employer discourages such leave.
- Employee Productivity: An employee’s ability to work while sick will vary based on the individual employee, the illness from which the employee is suffering, and the type of work the employee is performing. Employees who are too sick to work should be encouraged to take a day off to promote faster recovery and to avoid diminished work performance. Employers want to avoid employees not using sick leave when they are truly sick and disguising a sick day as a remote workday.
Employers should have strategies and policies in place to deal with employees' use of sick leave, including a plan for temporary reassignment of tasks and deadlines, expectations as to the amount and type of work that can performed when employees work from home, and established communication systems and protocols. Employers cannot retaliate against employees for taking leave.
Do employers have to offer the same remote work opportunities to all employees?
An employee’s desire to work from home rather than using sick leave is different from a request to work remotely as a reasonable accommodation because of a qualified disability. Employers must be able to recognize the difference and respond accordingly.
Affording employees the ability to work remotely (sometimes referred to as “telework”) has long been recognized by the US Equal Employment Opportunity Commission as a potential reasonable accommodation under the Americans with Disabilities Act (“ADA”). However, while the ADA requires covered employers to provide qualified applicants and employees with reasonable accommodations that allow them to perform the essential functions of their job, it does not require employees to offer remote work to all employees. Employers may, but are not required to, institute remote work policies which may restrict remote work to certain employees based on the nature of their job and if the accommodation would create an undue hardship.
Following a request for a reasonable accommodation of remote work, employers must engage in a flexible "interactive process" with the employee to determine what limitations from the disability make it difficult to do the job in the workplace, how the job could still be performed from the employee's home, and whether other types of accommodations would allow the employee to remain full-time in the workplace. Employers are not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.
Are employees allowed to come to work if they have tested positive for COVID-19?
The CDC recommends that individuals who have respiratory virus symptoms that aren't better explained by another cause should stay home and away from others. Individuals may return to their normal activities when, for at least 24 hours, both are true: (1) their symptoms are getting better overall; and (2) they have not had a fever (and are not using fever-reducing medication).
Individuals who have tested positive for COVID-19 and do not have symptoms and individuals whose symptoms have subsided, should take added precaution over the next five days, such as taking additional steps for cleaner air, hygiene, masks, physical distancing, and/or testing when you will be around other people indoors.
To diminish the impact of a COVID surge on businesses operations, employers are urged to:
- Advise people to stay home if they are sick to avoid increased spread of illness.
- Establish an infectious disease protocol so employees know what is expected of them.
- Develop flexible leave and telework policies to support workers to stay home if sick or to care for sick family members, provided they are well enough to do so.
If you are an employer seeking guidance regarding the New Jersey Earned Sick Leave Law, the Americans with Disabilities Act, or remote work policies, including but not limited to proper compliance and implementation of corresponding employee policies, please contact your CSG Law attorney or the author of this alert.