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Sick Leave Policy vs. CDC Recommendation

by Renee Bucklin
Bucklin Human & Administrative Resources
Below is an article on sick leave policy modification in response to a situation with a CDC recommendation for a “pandemic.” Please feel free to share it with your clients/business partners.

The RI Department of Health has recommended that companies review their sick leave policies in preparation for "flu-related absenteeism", which may adversely impact your business. It is suggested that companies consider cross-training employees so they can fill in where absenteeism has become a problem, and that they review options for telecommuting.

Managers should be trained about how not to share employee absence information, in conjunction with privacy issues. Federal laws, including the Americans With Disabilities Act, prohibit revealing health information about any employee.

I am available to help review your policy(ies), suggest modifications and assess your overall current human resource policy compliance. Feel free to visit my website ( for a complete overview of all the services that my company provides.
Most companies with formal sick leave policies include a requirement that an employee who has been out ill for three days bring in a doctor’s note affirming their ability to return to their job. This, in theory, protects the employer’s workers from potentially contagious employees making others ill. In addition, the note tells the employer that the employee is able to perform their job, unless otherwise restricted. Of course, it also proves to the employer that the employee was, indeed, out due to illness.

The Center for Disease Control (CDC) may recommend a stipulation requiring a doctor’s note be waived for those with "flu-like symptoms". CDC does recommend that people do not return to work until they have been symptom-free for 24 hours. Their rationale is that doctors’ offices will be overwhelmed with requests for these notes, possibly when they haven’t even seen the patient during the illness. (Some industries, such as healthcare, childcare and education, should not waive the requirement to ensure the safety and health of their employees and clients.) 

A lawyer in NJ disagrees, however. Marvin Goldstein, with Proskauer Rose LLP in Newark, says that the opposite should be true, and that employers should become more stringent, because sick employees who come to work could spread the illness and worsen the pandemic. One of his clients even instituted a policy that anyone coming to work with the flue could be terminated! 

However, some employers who decide not to comply with CDC recommendations should so notify employees. “Companies should carefully consider possible employee relations fallout from going against the CDC’s recommendation on doctors’ notes, pointed out Stephen Woods, an Ogletree Deakins attorney in Greenville, S.C. Woods said that whether a company decides to waive the requirement may depend on how widespread the H1N1 flu is in an employer’s area and how strong the related strain on the health care system is. But he said, ‘Most employers should suspend their ‘doctor’s note’ requirement for H1N1 absences, given the CDC’s position on this.’” (; 10/13/09) The employer should be up-front about their decision, and explain why they choose a more conservative approach, i.e. health and safety of co-workers and clients, as well as continued operation of the business.

A couple of options that a company can use:

1. Have an employee sign a form confirming that they did have the flu but were unable to provide written documentation clearing them to return to work. 

2. Allow employees to work from home as much as possible when family members are ill.

3. If the company has a sick leave “bank,” ease the restrictions for allowing access to that time.

4. Allow employees to use sick leave from the next year, so that they will not come back to work too soon because they will otherwise incur devastating financial repercussions.

5. The company will communicate to employees that they reserve the right to send an employee home who comes in while contagious or with symptoms.

While every effort should be made to establish a climate of trust, employers should continue to monitor situations for abuse and respond accordingly…using extra care to assure that no discrimination is involved. 

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