Can You Be Fired for Going to Work When You're Contagious?

This has been one of the worst flu seasons in many years. Recently, infectious specialist “Dr. M” called my office from NYU Langone Health and asked that I discuss the risks to co-workers when someone with a cold or the flu uses over-the-counter symptom-reducing medicine, goes to work instead of staying home and spreads the virus to others.

He noted that many physicians are upset with TV commercials that promote the use of these medications and encourage dangerous behavior that results in making a lot of people ill.

“The flu kills thousands of people every year,” he said, “and these drug companies should be ashamed of themselves.”

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Does this sound familiar?

We’ve all felt a cold — or something worse — coming on and thought, “There is so much work to do. I can’t stay home!”

So we reach for a multisymptom cold and flu medicine, pop a pill or gulp down a tablespoon, pretty soon feel a lot better and head off to work.

Yes, ideally we should stay home to protect others from our bugs— we know that — but those TV ads show people taking that cold medicine and then going on a date or hitting the ski slopes or having dinner with family and friends.

H. Dennis Beaver

After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column. "I love law for the reason that I can help people resolve their problems," he says. "I know it sounds corny, but I just love to be able to use my education and experience to help — simply to help. When a reader contacts me, it is a gift."

However, a few hours later, when the stuff wears off, we end up coughing, sneezing and spraying virus all over our workplace. The boss might take us aside and say, “Go home and do not return until you are better. If you come to work sick, you risk termination.”

If you come back the next day — still sick — can this legally be the basis for getting canned? How should employers deal with these issues?

Cost to employers of just one employee with a cold

I ran this topic by Southern California labor and employment attorney Jay Rosenlieb, asking, “When just one employee has a cold, what does this cost the employer?”

“Dennis, most people have no idea,” Rosenlieb says. “The numbers are staggering. According to the CDC, Harvard Business Review and Kaiser Permanente, the economic losses range from $1,685 to $2,945 per year per employee due to lost productivity from absenteeism, with the overall cost of sick employees in the U.S. reaching hundreds of billions annually due to both absenteeism and ‘presenteeism’ (working while ill) and having to care for ill children or other family members.”

These costs include:

• Direct costs. Sick leave paid to the employee
• Indirect costs. Reduced productivity from an employee coming to work while feeling unwell and from spreading illness to co-workers
• Impact on team dynamics. A sick employee can disrupt workflow, requiring colleagues to cover for them while they are out

“And (that $2,945 per employee per year is) just when one person is sick,” Rosenlieb underscores. “So, just imagine when that one person still comes to work and spreads virus, causing others to fall ill. The issue must be addressed in a policy that all employees are made aware of and is posted where everyone can read it.”

Sample 'when you are sick' language

Rosenlieb suggests using the following language — and it “should be posted in locations where all employees are certain to see it and put in as an envelope stuffer with their paychecks.”

• If you don’t feel well, stay home.
• If you are taking medication that suppresses cold symptoms, including fever, coughing, aches and pains and sneezing, do not come to work because you are still sick and can make others ill as well.
• The fact that you may not be showing symptoms temporarily after taking cold medication does not mean you can’t infect other people.

“Most employers,” Rosenlieb points out, “no doubt recall the nationwide guidance issued by OSHA during the COVID-19 pandemic, which stated, “Regardless of if it is the common cold, the flu or COVID-19, your temperature has to be normal without having taken Tylenol or aspirin. If you are taking these medications, do not come to work as you are still a risk for other people.”

'The next time is the last'

Rosenlieb advises employers to tell ill employees displaying cold symptoms that they have the rest of the day off and to use sick pay or vacation pay, if they have those options. Otherwise, they won’t be paid.

They also must be warned that coming to work sick the next time may very well result in termination, because they would be exposing others to the risk of becoming ill.

“It is important to emphasize that the employee would not be terminated because of their illness, but rather, because they willfully were exposing others to infection.”

And what about the risk to public health — the moral risk — in encouraging behavior that unreasonably exposes others to a risk of falling ill?

These issues have been raised online, and I wrote one of the largest manufacturers of cold remedies, asking, “How do you justify encouraging this behavior?” It has been weeks and still no answer.

Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.

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