Telecommuting To Avoid Taking a Sick Day – Ask HR Bartender

by Sharlyn Lauby on June 23, 2013

You know how every once in a while you hear a story that just makes you go “hmmm…”? Well, that was my reaction to this reader response on my post “Calling in Sick but Going Out with Friends”.

I have exempt employees who email in the morning that they’re taking a sick day, but in the same email say they are working from home and available.

Our company has a bone fide leave plan. I’ve not found any legal reason why an exempt employee, with available paid sick leave, can’t do work from home while taking a paid sick day. We’d like to have a ‘policy’ encouraging them to refrain from working at home if they are really, legitimately ill. This scenario is essentially ‘telecommuting’ which is only available sporadically, on a case-by-case basis, with pre-approval from the CEO. Your thoughts?

Very interesting situation. Since we’re talking legal stuff, I asked my employment attorney friend Mark Neuberger, with the firm of Foley & Lardner, to offer his insights.

First off, what’s the law with regard to exempt employees and sick pay?

exempt, non-exempt, sick day, telecommuting, attorney, employee, work, salary, Neuberger[Mark] Under the federal Fair Labor Standards Act (FLSA), one of the criteria that must be satisfied in order to have an employee fall into most of the exemptions from overtime pay is that the employee must be paid a fixed weekly salary.  Fixed weekly salary means just that; you cannot ‘dock’ an exempt employee for work.  While you can have a bank of sick days to be used up, if an exempt employee ‘goes negative’ on their bank of sick pay, their pay should not be reduced.

Conversely, one of the greatest misconceptions out there is the assumption that if I make any employee salaried, they are automatically exempt.  That is a BIG mistake many employers make.

Let’s say I’m an exempt employee. If I call in sick, but say I’ll work from home…can the company tell me not to and charge me a sick day? 

[Mark] Any employee, exempt or non-exempt, who performs productive work, must be paid.  The FLSA uses the arcane term ‘permitted or suffered’ which is designed to reflect the policy embedded in the law that even if the employer did not specifically authorize the work, or didn’t really know the work was being performed, the employee still must be paid.

The reader doesn’t address this but I think it’s a good point. If I’m sick and go into work, then I decide to go home after being there a couple of hours…can the company dock me a sick day?

[Mark] If you are non-exempt, the answer is ‘Yes’ since you must be paid only for hours actually worked.  If you are exempt, the answer is ‘No’, you cannot be docked.

Besides the obvious reason of health, why would a company tell an employee who is sick and offers to work from home just to “not work and take the sick day”?

[Mark] If an employee is sick, their attention and focus will be lacking, impacting accuracy and overall performance.  An employer who allows an employee with the flu and 103 fever to make complex accounting or engineering decisions is asking for all sorts of problems.

Does a company need a policy for this? Or would creating a policy possibly create too much restriction?

[Mark] While I am no policy junkie, in this instance I believe the answer is ‘Yes’.  The problem I see most often is well-intentioned employees who are home sick want to show their dedication and figure they will login from home and get in a few hours of work.  With not so well-intentioned employees, the employer should not create an environment in which employees can call off when they are not sick, hit the beach or go shopping for a few hours and then log in to try to cover.  This creates a whole range of issues for the employer.

A policy should set standards and communicate expectations.  If you are really sick, we really do want you to chill out and get better soon.  If you are not really sick, we will be watching your ‘check-ins’ on Facebook and Twitter.

The reader mentions telecommuting. I know this wasn’t their point but even telecommuting employees get sick. In your experience, how do companies with telecommuting policies handle sick time?

[Mark] The single biggest problem facing employers who allow employees to telecommute is how to know when employees are working and when they are not.  Sick time for telecommuters is really no different than site-based employees; you have to accurately track it.  If you want to know more about telecommuting, I direct you to my colleague Larry Perlman’s recent article in the Miami Herald.

A huge thanks to Mark and his firm for sharing such a valuable resource.  If you want to get more updates from Mark and the team at Foley & Lardner, be sure to follow them on Twitter, like them on Facebook or connect with them on LinkedIn.

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