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  1. #1
    Join Date
    Mar 2010
    Posts
    1

    Default Does an Employer Have the Right to Ask a Sick Employee to Go Home

    It’s a small company with 4 employees. The company distributes an annual handbook each year detailing how much sick – personal – vacation time is being offered. It also describes the paid holiday schedule.

    If an employee is out 3 days in a row the employer asked that the employee not return to work until they have a doctors note stating they are healthy enough to work and not contagious.

    Currently for 2010 every employee has 5 sick days and 3 personal days that can be used any way the employees choose. Unused time is forfeited, employees are not paid for un-used time and it does not roll over to the next year. Time doesn’t accumulate year to year.

    Without fail every employee uses all the sick and personal time. The Employer isn’t bothered by this at all. The time off is willing granted and the employer would prefer a sick employee just stay home.

    Often employees come to work complaining that they have a fever or have been throwing up. The employer then asks that the sick employee go home to get better.

    The employees who have used all their sick time want to be paid arguing that despite being sick they showed up to work and only left because they were asked to. They feel that because they were asked to leave they are then entitled to a full day’s pay.

    Does an employer have the right to ask a sick employee to go home in Massachusetts?

    If an employee is sent home because they are sick should they be paid even if they do not have any remaining sick time?

  2. #2
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Does an Employer Have the Right to Ask a Sick Employee to Go Home

    This is posted in the wrong forum.

  3. #3
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    17,067

    Default Re: Does an Employer Have the Right to Ask a Sick Employee to Go Home

    In all 50 states an employer has the right to ask a sick employee to get home. They are under no obligation to allow a sick employee to stay and infect their co-workers.

    If the employee is non-exempt, then no Federal or state law (in any state) requires that they be paid for time they did not work, so if they have no sick time left there is no law that is going to require the employer to pay them. If the employer chooses to do so on the basis that they asked the employee to go home, that's fine, but they are not legally required to do so.

    An exempt employee cannot be docked for time missed due to illness UNLESS the employer offers a reasonable number of paid sick days. Most courts have defined "reasonable" as no less than five. So under the circumstances you have described, an exempt employee who had used up (or was not yet eligible for) their paid sick days would not have to be paid. If, in some future year, the number of paid sick days should be reduced, then the exempt employees ONLY would have to be paid for time missed due to illness, regardless of whether the employer asked them to go home or whether the employee called in sick of their own accord. This is Federal law and MA has no laws that amend it. HOWEVER, it should be noted that unless the time is attributable to FMLA (and for an employer this small, FMLA does not apply at all) an exempt employee CANNOT be docked for a partial day increment. So if the employee comes in to work and is later sent home sick, they must be paid for that full day regardless of whether they have any available sick time or not. They need not be paid for any subsequent days if they are out of sick time, but EXEMPT EMPLOYEES ONLY need to be paid for the full day in which they worked part of the time.

    If you are unsure whether the employees are exempt or non-exempt, please post back.

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