Requiring sick driver to drive is a violation of employee's rights

If you're someone else's employee, there's a fair chance you get paid sick time. Even if you don't, there are times when you shouldn't work due to sickness. Imagine a cook working with a horrid flu or a radio DJ who has lost her voice.

Or imagine an over-the-road commercial driver whose doctor says he is too sick to drive safely. You wouldn't want him to ignore those orders, would you?

Unfortunately, employers sometimes set policies that-- intentionally or not -- make it very hard to call in sick. Frito Lay Transportation is apparently one such company, although we don't mean to single them out. The company came to our attention because of a recent case in which it violated a driver's statutory rights by disciplining him when he refused to work sick.

According to the industry journal Overdrive, the Frito Lay driver was out sick on two separate dates because he believed he was ill enough that his ability to drive a commercial truck would be compromised. This exceeded the allowed number of sick days, so Frito Lay disciplined him.

The company policy was a so-called "no-fault, five-step attendance policy, which establishes progressive discipline for unauthorized absences," according to the Occupational Safety and Health Administration, which investigated the case. In other words, it didn't matter what his reasons were -- a certain number of absences would result in various grades of discipline.

However, commercial drivers have rights under the Surface Transportation Assistance Act, one of the federal laws governing their industry. The STAA gives drivers -- not their employers -- full authority to determine when an illness might compromise roadway safety and to refuse to drive under those circumstances.

OSHA found that this driver's absences qualified under the STAA, and therefore could not leave him subject to discipline by Frito Lay. As a result, OSHA ordered Frito Lay to pay the driver $1,500 in direct compensation, another $10,000 in punitive damages meant to punish the company's bad behavior, and $5,915 for attorney fees.

Most American workplaces operate on an "at will" basis, meaning that both sides can end the relationship for any lawful reason. Not everything in the workplace that feels unfair is actually illegal. Employees do have rights, however -- sometimes more than they realize. If you've been disciplined for something you had a right to do, talk to an employment law attorney.

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