DTCI: Working while sick? It’s different in the COVID-19 era

I dread cold and flu season. It is the rare winter that I do not get walloped by a sinus infection, flu or some other virus at least once, if not twice. I’m sure you know that feeling of waking up with that tell-tale tickle in your throat or increased congestion, or just feeling a little “off.” You pop some Vitamin C or acetaminophen, increase your fluid intake and dress warmly. Then you go about your day, hoping it will not progress further or will at least be short-lived.

For most of us, going about one’s day means going to work. There you keep the tissue box nearby. You watch the clock for the time to take more acetaminophen to keep the throat pain at bay. Sometimes you feel a little flushed and wonder if you have a fever, but the acetaminophen is keeping that at bay, too. You cancel your lunch plans and generally try to keep your distance from co-workers.

You know if you start to feel much worse, you will call your doctor or head to the PromptMed. You also know there is a good chance the doctor will tell you it is “just a virus” and may not even prescribe medication, so you debate with yourself whether to bother. You might also decide to skip the doctor because, due to your high-deductible health plan (or lack of health insurance), you know the visit will be expensive.

You can call in sick if the symptoms become severe. However, you think long and hard about whether you want to give up your paid time off for this illness. Even if you have plenty of paid time off or have allotted sick days or unlimited time off, the press of work weighs on your mind. There may be deadlines looming, or you just don’t want to let your boss or your team down. So you keep taking your over-the-counter medication each morning and trudging off to work day after day, coughing, sniffling and maybe even feverish. Eventually your symptoms subside, your energy level returns and life returns to normal. You might notice one team member coughing and sniffling a day or two later. Then you hear about another who has called off. You wonder for a moment whether you passed your illness to them, then conclude they could have gotten it anywhere.

I would say that employers have, on the whole, benefitted from the cost-benefit analysis and internal debates described above that result in employees coming to work sick. Their employees soldier on through their winter colds and flus, and the work gets done. Employers in Indiana and in many states are not legally obligated to provide paid time off or sick leave. Many, of course, do provide a certain number of paid days off that employees can use for illness, but employees are often pulling from the same pot for doctor appointments, being at home to let the plumber in and taking a much-needed vacation. The incentive for these employees, I’m afraid, is to work while sick so they can “save” PTO days for vacation and emergencies.

Now enter the age of COVID-19. Having a system that incentivizes employees to work while sick is no longer tenable. Most of the symptoms of COVID-19 overlap with the symptoms of illnesses such as strep throat, bronchitis, sinus infection and other viruses that are so common when the weather turns cold. As we well know, if an employee’s illness turns out to be COVID-19, working while sick could be a medical calamity or worse for a vulnerable coworker.

Congress passed temporary leave protections for employees who either have or care for others afflicted with COVID-19, but these protections will sunset at the end of 2020. Now is the time for employers to consider whether their current policies incentivize working while sick. When the shutdown occurred in the spring, many employers and employees quickly learned they could still be productive working from home. Continuing to invest in remote work capability is a great way to keep illness out of the workplace but still get work done and employees paid. When work must be performed on-site, offering employees a sufficient amount of paid leave just for illness, or even unpaid leave that does not result in attendance points, should be considered to help prevent illness from spreading. Aside from policy changes, messaging is very important. Employers must make clear that working while sick is not expected and, in fact, not acceptable.

As the cold and flu season ramps up this year, our workplaces will be challenged. Each illness must, for the time being, be viewed with suspicion. Employers who revise policies that incentivize working while sick will reduce contagion, and they might end up increasing employee morale at the same time.•

Germaine Winnick Willett is senior counsel at Ice Miller LLP and is a member of the board of directors of DTCI. Opinions expressed are those of the author.

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