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Tuesday, October 20, 2009

MD activity at work

Is an employer allowed to hand you a thermometer and tell you to take your temperature at work? Can they send you home if you have a temperature?

And now it's time for the big disclaimer: I am not a lawyer. I do not pretend to be a lawyer. I am not an expert on law. I don't pretend to be one. This is not legal advice.

I see this as one of those you can't win situation. If you allow people who are sick to work then their co-workers will be writing me saying, "Can't the company require sick people to stay at home? I don't want to get infected?"

There are some things to think about. 1. If they send home an exempt employee they must pay her anyway. 2. Hourly employees (not under contract, this does not apply to unions) are only paid for the hours they work. Companies are not required to provide a certain number of hours per week. (Think back to your days working fast food. If it was a slow night, they sent you home.)

I honestly don't know if it's legal to require someone to have their temperature taken in the normal course of a work day. You can require drug tests and physicals as conditions of employment. (And if I recall, my last work physical involved a temperature check, although why I can't imagine. Having a fever at THAT MOMENT hardly means you always have one.)

I think the real question is should this be a policy? Well, honestly, I want sick people to stay home. I want people to be adults and be able to call up their own bosses and say, "I'm sick so I'm staying home," and have that be the truth and I want the boss to believe the person and I would really like it if there were an adequate number of sick days.

I think it's a weird thing to do, but I can totally see the business reason: Sick people infect other people, which makes more people sick, which hurts the business. Unfortunately, with most diseases you start being contagious before symptoms show, so you can't stop that. However, it makes sense to ban sick people from the office.

Like I said, I'd rather see this occur by having everyone take their own temperatures at home. I hate the requirement to go see a doctor because for most illnesses the doctor is either going to say, "you're sick. Drink fluids. Rest. You'll get better on your own" or he'll prescribe an unnecessary antibiotic. I understand why though, because all HR people can tell you about lying liars who we've dealt with.

The problem comes in when you have an hourly workforce who don't get paid if they don't work. People work because they need the money. No one wants to work when sick. We do it out of obligation (I must get this project done) and need (I must pay the mortgage). If the company is offering paid sick days, doesn't require you to come in for the temperature taking (that is, they believe you if you call in sick), and doesn't punish you for taking time off (lower rating, bonus, etc), then sure. I think it's a bit creepy and weird, but okay.

If it's a job that involves food handling or dealing with already sick people, then I think it's even more important to keep sick people home. But like I said, I think it's creepy. Maybe a lawyer can chime in if it's legal to take the actual temperature.


Barbara LIng said...

I'm from the generation that the only excuse for missing work is your bandaid for your broken arm failed to keep it attached to your body.

That being said, age has shown me the wisdom of just plain staying home when you're sick. Besides, one can also complete tasks at home without infecting fellow co-workers.

Kerry Scott said...

I'm guessing this relates to the fact that swine flu is now spreading pretty fast in many places in the U.S., and the vaccine is not yet available for most of us.

Once I worked someplace that had a call center. I had a guy who had full-blown AIDS (back when the drugs that slow AIDS down were not yet available). People would come to work with colds and flu and stuff, and for them it was no big deal...but for him, it could kill him. We had sick days...people (some people anyway) just didn't want to use them, because they wanted to save them for days when they weren't sick and could goof off.

Coming to work sick might be no big deal for you, but there are other people with compromised immune systems, or a 99-year-old granny living with them, or a newborn at home, or any number of things that can make the situation more serious.

Don't be a jerk. Stay home when you're sick, so you don't kill someone's granny/baby/whatever.

Anonymous said...

We actually have plans in place at both our corporate office and plant locations to require a health assessment questionnaire and a temperature scan. Essentially, everyone who enters the premises must fill out the questionnaire and then have their temperature taken – no exceptions. Score too high on the questionnaire or have too high a temperature and you’re sent home. This is triggered by a confirmed case of H1N1 of an employee at the location or by government quarantine of the area.

Now, this does strike me as a bit overkill, but is perfectly legal in the US. While you would think that people would be sensible enough, and have enough respect for their co-workers to not show up sick, people do it all the time – even salaried exempt! Again, while this might seem a little extreme, it would limit the spread of the flu and hopefully keep the company productive through the wave of sickness.

jmkenrick said...

Kerry - thanks for that comment. Due to some health problems from when I was a kid, I have a compromised immune system that can cause all sorts of unnecessary worry during flu season.

It's not even in the ballpark of AIDs, but it does make getting minor ills way more stressful than they are for most people (not to mention expensive.)

I really wish people would just stay home when they're sick.

Anonymous said...

I am not a lawyer either but our Communicable Illness policy was reviewed by our legal counsel and employers can send employee's home if they suspect that they are sick (and therefore a possible danger to their coworkers). We don't actually make people take their temperature on site, we just send them home and tell them they can come back if they have a release from their doctor. We do provide sick days on top of PTO days, so generally it's not an issue of people not being paid for missing work.

We created this policy after one really bad winter when everyone in our administrative offices got sick over a 4-week period, some more severely than others, and no one wanted to take time off, making the whole incident last longer than necessary.

HR said...

This is an interesting question. I think people that are sick should stay home. In my office everyone is exempt (I know this is hard to believe, but true), so there really is no excuse to come into work sick. Employees can use PTO or simply work remote.

This reminds me of a recent news story. In Foxboro, MA a recently passed ruling will allow the school to give students a breathalyzer test if they are suspected of being intoxicated in the classroom or at a school event. Sound similar to the question you’re asking. All I know is the world has changed a lot since I entered HR 15 years ago.

Anonymous said...

We asked our lawyer and were told to NOT take temperatures or even have thermometers available. We do NOT want the liability. I work for a medical clinic and the legal advise is that even though we do have MDs able to make a diagnosis, the conflict of interest, issues of privacy, and knowledge/use of medical history is too high. Our lawyer doesn't want us going there.

If someone feels sick, we allow them to go home. We make people take three days of PTO and then they can use their extended illness bank(our cheap version of STD). We accrue 4 hrs/month and it can only be used for FML or illnesses longer than 3 days. If they do recieve FMLA, they can skip the PTO and just use the EIB.

Essentially we plan on sending anyone home who is visibly coughing and appears sick or tells us "they don't feel good." They can get their own doctor's note that releases them to come back to work if they want to be here bad enough but we are very good about encouraging them to stay home.

Anonymous said...


TheLabRat said...

My kingdom to work someplace that demands you stay home when you're sick. Most places I've been instead demand a doctor's note, knowing good and well that most of their employees don't have health insurance and can only get to a doctor by an expensive and lengthy ER visit or fortunate timing when the local clinics are open. And to be honest if I'm sick enough to call in, odds are I'm too sick to go to a doctor.

It's funny that you mentioned working around food as being a good time to just stay home when you're sick. I agree completely, but it would seem that restaurant management doesn't. I have yet to work in a food job that understands that allowing their cooks and waitstaff to work while sick is just asking to get half of the regulars ill as well. Even with a doctor's note, they still frown on missed days.

kent said...

i'm a lawyer, but it doesn't always help....

the EEOC just issued a guide at that includes this question:

"When may an ADA-covered employer take the body temperature of employees during a pandemic?"

the EEOC says:

"Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever."

Christopher said...

Most places that I've worked have an unofficial policy wherein if you call in sick, you'd better damn well be sprucing up your resume while at home. Chances were pretty good you wouldn't have a job when you came back. I've actually worked food service with a particularly nasty flu (which I'm sure I gave to half of Chicago), but I couldn't call in because there was quite literally no other people available to cover my shift. That, and the fact that my pay could only barely be considered subsistence wages.

Katherine said...

Very timely post! I work for a large (almost 2000 employees) organization in the hospitality/entertainment industry, and the organization just sent out this notice in the paychecks:


1. Follow your department’s Call In procedures.
2. Call the Human Resources Hotline as directed by your department if you have the flu.
3.Provide proof that you or your minor child has a documented* case of the flu to have the absence excused.

*Documented means that you have consulted a doctor
and your doctor has directed you to stay home.
Human Resources will provide you with a form that you can take to your doctor.
If you have any questions, please contact the Human Resources Hotline at ###-####.
Employees must use their available sick time when calling in sick.
Using vacation or personal holiday time is optional.
The CDC recommends that people who have a fever or chills and
a cough or sore throat stay home. If an employee is exhibiting
these symptoms while at work, they will be sent home.

It'll be interesting to see how it plays out in practice.

Anonymous said...

Three of our salaried management staff (including our evil HR lady) have recently been ill with flu like symptoms. None of them decided to stay home. Today they were testing a thermometer so that they could implement a new policy for their employees. If you have a temperature "go home". Hourly employees do not have sick leave at this company.

Also, we recently had our evil Nurse lady come in to administer flu shots. Now we have documented which employees chose not to immunize!

I am sorry, but does this smell funny to anyone else?

How far do we want to go in holding people responsible? How about those who eat wrong, smoke, drink, don't exercise and then blame you for getting them sick??

This just bothers me on so many different levels.

Olivia said...

We recently created a policy awarding extra sick time for illness related to flu. (similar to Katherine's listed above.) We set up information centers with thermometers on both floors, so that employees could self check if they so wished. We've put up signs (available online) to warn our employees to stay home if they are sick.
Anything more starts to cross those medical and privacy lines.
That said, I find that a lot of people are closet conspiracy theorists, and find any company efforts to be part of some master scheme against them.

To me, this kind of tricky situation illustrates what kind of company you're working for! One that tries to make it easy for you to do the right thing, one that punishes you for doing the right thing, or one that actively encourages you to do the wrong thing. Most illuminating.

Ben said...

I like my former boss's sick day policy.

If you're sick, stay home. If you come to work when you're sick and his son catches your illness, it'll be your job to babysit his sick child.

Anonymous said...

I worked in a call center last year and I have not ever been more sick in my life. People constantly came to work sick. It would not be uncommon for someone to cough all day, and not cover their mouth in their cubicle. They did not take good care of themselves, and did not have good hygiene. As awful as it sounds, I was in better shape working in a hospital or doctors office compared to that environment. The one lesson I learned is that hourly employees in a call center do not take measures to take care of themselves. This is something as simple as spraying Lysol, washing hands, washing their clothes and I could go on but you get the idea. There is no perfect plan for H1N1.

Unknown said...

How about those who eat wrong, smoke, drink, don't exercise and then blame you for getting them sick??

Slight tangent, I know, but you can do everything right and still get sick. My dad didn't smoke, ate right, drank moderately, and exercised. But the pulled muscle from the 10K he had run turned out to be cancer.

7daytrial said...

I work in a call center and our attendance policy is based on a points system. You get x amount of points for how many hours you miss, or 10 points to miss a whole day. 70 points and you're fired.

We have sick time and vacation time, but if you can't get the time off approved then you have to take points. It's a 'no fault' policy so someone that's bleeding to death in the hospital with a doctor's note gets the same amount of points as someone that called in to stay home and play video games all day.

My 3 month old daughter had the swine flu and I regretfully had to leave her in the care of her grandparents. I called work to let them know what was going on and they made it very clear that, though they felt bad for me, I was still expected to be at work.

That is, until I went in.

I went into work, coughing and sneezing and sweating. My teammates flipped out at the mention of swine flu and expressed their concerns to management. My Lead spoke to a supervisor and worked very hard to find a solution. After about 3 hours, I was sent home with pay and no points. I was told that I would have to take points for the following day if I didn't come in.

Obviously I wasn't better the next day, but I didn't have a choice. I had some childcare problems and then i had to take points to take my daughter to her grandparent's 3 states away, so i couldn't, points-wise, afford to stay home. If I lost my job, I would have spent over a thousand dollars and unknowingly exposed my daughter to swine flu for nothing.

Here it is, a week later, and I still have a cough. If they made me stay home, I would be unemployed. Yes, it's very sad that some of my co-workers may have gotten sick because I didn't have any other option, but I was very careful to keep hand sanitizer with me and try to contain my germs as best as possible.

I also made sanitizer available to those immediately around me. We even attempted to wear masks, but the nature of our job doesn't allow that to work very well.

It's unfortunate that i got sick, but when it comes down to it... my job is worth more to me than someone elses' health. I would be very sad to learn that someone's child was sick because of me, but I can't let that keep me from going to work. I still have bills to pay while my husband is fighting for our country.

Until employers let sick people stay home with pay and no punishment, sick people will continue to go to work and infect their friends. It's just one of those sucky things about life.

Kerry Scott said...

7dayleave---are you not eligible for FMLA leave? Typically a weeklong flu involves a doctor visit, which means it falls under FMLA (which means no points).

Anonymous said...

It is precisely this sort of thing that prompted the city of San Francisco to require that employers provide paid sick leave, particularly in the restaurant industry.

7daytrial said...

Kerry-- Normally, I would be. However, you are allowed 12 weeks of fmla leave per year and I used all of mine on maternity leave.

Olivia said...

7 day trial - see my comment regarding the kind of company you work for. What amazes me is that KNOWING that you had the flu, they FORCED you to come in, and potentially infect many others, who then would have to either come in or be terminated, etc. One assumes, as well, that they will wind up having to fire some people, probably otherwise good employees, who will exceed their time off due to personal and/or family illness time. Then, they'll have to recruit, retrain, etc. Stupidity.

7daytrial said...

Olivia- Most of the time I would totally agree. Without giving out too much information, I work for an amazing company. The job itself is horrible, but it is the best company I have ever worked for.

That being said, they know the attendance policy is terrible and they are trying to revamp it. Right now, they say that the policy is pretty lax (HA!) and they are putting in amendments for flu season.

It seems that my situation drew a lot of attention. Now, you can get the points waived if you bring a doctors note immediately upon returning to work. The note must state that you were seen for "flu-like symptoms" and it will excuse up to 4 days.

Since it is a call center and we have to totally put the customer first, we don't really have a lot of room for people to be absent. It get's pretty hellish when we are shorthanded.

There are also lots of theories running around about our staffing and lots of people are getting terminated. We'll just have to see how this holiday season plays out and hope for the best.

Anonymous said...

We have a very tight PTO policy - 10 days, no separate sick days and only 7 paid holidays - and this is at a very senior level.

That is enough to visit family on the opposite coast once per year, and take one vacation and that's it. So, if I'm sick, as long as I can drag myself out of bed, get dressed and make it in to the office, I'm not taking that precious PTO.

As a result, I get paid for a day where I end up staring at my monitor for 9 hours and getting no work done due to being ill, while spreading germs around the office. All thanks to such a well thought out vacation policy.

Anonymous said...

I went to the Doctor today due to being ill. As the day went on, my symptoms got worse and I asked if I could go home. My supervisor told me that I would get an occurrence if I were to leave. I asked about the new policy from last week about the Flu. My supervisor then spoke with H.R. and returned to my desk and handed me this paper thermometer. I was told “I need to take your temperature" which I complied. My supervisor read my temp at 97.2 and told me I had no fever. Is my supervisor trained to read temps? Should I have declined? I was sick and felted threatened and did as I was instructed. What can I do now that my privacy was invaded? My supervisor and I do not care much about each other and now I feel ashamed for I was supposedly not “sick” enough to go home. I also would like to mention an email we got from our company’s wellness department stating if we feel sick, do your coworkers a favor and stay home. Hmmmm

Anonymous said...

Nice idea. You must never have worked in a call center. Goiod luck getting time off for your own funeral if you work in one of those.

ministar27 said...

I've been working in Korea for almost two years now... and one thing I really can't understand is that they don't like when you stay home because you're sick. One boss told me that if you're sick, you have to be sick at work, and if you're going to die because you're sick, you die at work, and that's how it should be done so I should follow it.
So if one person gets cold/flu, almost the whole floor gets sick within a month.
I got used to a lot of things during my stay, with the different culture, but this is one thing I just can't understand! ;)