What Do You Do About “Out Sick” Workers Working From Home?

Technological advancements have greatly increased connectivity for people in different locations, which makes it much easier for employees to carry out their usual job functions from the comfort of their own homes. Although telecommuting has grown in popularity, many employers require their employees to work in an office. However, that is not always the best environment for employees when they’re feeling ill.

In order to get well while staying on top of their work, many employees have opted to work from home while sick. As summer draws to an end, and flu season looms in the distance, prudent employers are looking ahead to prepare for the growing trend of “telecommuting while sick.”

From October to March, anywhere from 5% to 20% of Americans will contract the flu. Despite being ill, many employees choose to come into the office because they do not want to miss out on pay, they do not want to burden their colleagues by being short-staffed, or they do not want their individual work to pile up. While these are legitimate reasons, being sick in the office generally creates more issues, such as producing substandard work, or spreading the flu to others.

Choosing to work from home when ill enables employees to work on getting better while not falling too far behind in their duties. However, this practice raises questions for employers, such as does this count as a sick day, what tasks can the employee perform, and how to prevent abuse of the arrangement.

What the FLSA says

Under the Fair Labor Standards Act (FLSA), any employee who performs productive work for the employer, regardless of whether the employer specifically authorized the work or knew that work was being performed, must be paid. This is true for both exempt and non-exempt employees; however, exempt status plays a large role in how payment for working from home while sick is calculated.

If an exempt employee performs any work on a given day, even if it is only for a few hours, then the employer must pay the employee for the entire day. Hours may be deducted from a paid sick leave program, if applicable; however, pay may not be reduced, even if the employee does not have enough hours in his or her paid sick leave reserve. On the other hand, if an employee is non-exempt, then the employer can count the unworked hours as sick time and adjust pay accordingly because non-exempt workers are only required to be paid for hours they actually work.

When a sick employee may work remotely

In order to avoid confusion around telecommuting while sick, employers should develop policies that explain when, and to what capacity, working from home is appropriate.

The policy can designate different levels of illness. If an employee only has a headache or a runny nose, that should not be sufficient grounds for calling out of the office. On the other hand, if an employee has a fever or serious illness that requires bed rest, then he or she should take the time to actually rest and avoid performing any work until better. When an employee is seriously ill, any type of work could be harmful to the employer since the employee may not be thinking straight or giving full attention to the assignment.

What kind of work can be done

Once the employer has determined when an employee can work from home, the next thing the policy should explain is what type of work can be done. Although a majority of office work involves using simple programs that can be installed on any device, there are certain assignments that require the employee to be on-site. Conducting transactions that require a secure connection may only be able to be done in the office; therefore, it would not be appropriate to allow an employee working remotely to handle these kinds of tasks.

Tracking time

When employees are telecommuting because of an illness, tracking their hours worked is extremely important, especially for non-exempt employees. Recording hours has been made much simpler by technology. Automated time and attendance systems can easily be accessed via an Internet connection to enable employees to clock in and out once they start and complete tasks.

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Some employers have general telecommuting policies, which allow only exempt employees to work from home, so they do not need to worry about tracking specific hours for payroll purposes. However, employers should avoid having similar policies for when employees spend the day working from their sickbed. When it comes to employee health, all employees, regardless of exempt status, should be treated equally, unless a specific individual has given the employer reason to suspect an abuse of the policy.

In addition to monitoring the hours that employees work, employers should also consider monitoring any patterns in requests for working from home while sick. Attendance tracking programs can help recognize patterns, such as staying home before a holiday weekend or repeated Monday or Friday sick days. If employees begin to demonstrate these patterns, then the employer should address the situation on an individual basis.

Progressive employers are seeing the benefits that technology can offer in terms of employee productivity. By implementing “telecommuting while sick” policies, these employers demonstrate they recognize the importance of employee health while simultaneously trusting employees to work within their limits. Furthermore, through various computer systems, employers can feel secure knowing that their employees’ work hours are being accurately logged, and that secure information is not at risk by being sent from a personal computer. These policies will not only help create a healthy and caring environment in the workplace, but also provide employees with enough flexibility to enable them to be as productive as possible, without jeopardizing their health.

Jules Z. Halpern is the founder and principal of Jules Halpern Associates, a boutique labor and employment law firm, with offices in New York City and Garden City, New York.

Jules counsels employers in varied industries on employee relations, human resources policies and workplace compliance. He investigates allegations of employee misconduct, audits employment practices and delivers anti-discrimination, business ethics and human resources-related training. Jules also prepares employment and separation agreements, defends administrative charges and negotiates with government agencies. Jules speaks on a variety of workplace law topics both locally and nationally. Before founding Jules Halpern Associates, Jules held senior level human resources and employment law roles within major corporations and was a human resources consultant. He was Senior Director of Employee Relations and employment law counsel at Random House, Inc. and the senior employment attorney at The Home Insurance Company and its affiliated companies.

Jules is a 1977 graduate of Hofstra University School of Law and a Summa Cum Laude graduate of Brooklyn College, where he was a member of the Scholar's Program. He is admitted to the practice of law in the State of New York and the United States District Court for the Southern and Eastern Districts of New York.

Elizabeth L. Driscoll is a law clerk at Jules Halpern Associates LLC.

As a third year student at the Maurice A. Deane School of Law at Hofstra University, Liz serves as an associate editor on the Hofstra Labor & Employment Law Journal. Liz is also the Justice of Hofstra’s Chapter of Phi Alpha Delta Law Fraternity, International, and the president and co-founder of Hofstra’s Irish Law Society. She will graduate in 2017 with honors concentrations in Business Law and International Law.

Before entering law school, Liz graduated Magna Cum Laude and received a B.A. in both Global Studies and Psychology from Hofstra University in 2015. She participated in Hofstra’s Legal Education Acceleration Program, which allowed her to finish her undergraduate education and begin law school one year early.

In 2015, Liz interned at Dillon Solicitors in Ireland. During the internship, she worked on a variety of legal issues, such as company wind-ups and contract modification.

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