Who has more of a right? (work issue, need legal opinions)

[GoldieSaysMeep]

At what point does a coworker who is ill, and probably contagious have to be sent home?

I have not been able to do any work at work for the last 9 days because I am seated right next to a man who sniffles, coughs, hacks, gags, loudly clears his throat, and does something that sounds like coughing up plegm ALL DAY LONG. He does it for 8 hours a day. I am not exaggerating.

I talked to him. I asked him to try and keep others in mind and try to drink water and use cough drops to be more quiet. He refuses. He also told me he has had flu like symptoms for close to 10 days but thinks it will just "go away". I asked him if he was contagious. He said he does not know.

I brought him some cough drops. I brought him some Day Quil. I suggested soup & drinking water. I'm sick of being nice.

I have no more sick time at work. I was out for a week due to a back injury which my doctor sent numerous notes on. If I get sick and have to be out, I will not only be unpaid, but also get written up for using too much sick time.

I am terrified that I am going to catch whatever this guy has. He sits less than 2 feet away from me.

These worries are destroying the quality of my work. I can not think straight or function. My workload is falling behind. Not only is this man's illness gross and scaring the heck out of me because I'll probably catch it, but it's also VERY DISTRACTING.

I spoke with my boss. She said there is nothing she can do and told me again, I will be written up if I need to take any more sick time. She said there is no place to move me to. She will not move him.

At what point does my right to have a safe working environment outweigh this guys right to come in and spread his flu all over the office??

 

[dreamkeeper]

If he has had these symptoms for the last 10 days, it is doubtful he is contagious anymore. Take more vitamin C and zinc and get plenty of sleep. Don't whine to your boss, it only makes you look bad.

 

[jack hannah bananah]

In this case - apparently you have no rights.

I suggest lots of Airborne.

 

[HappyDznyCamper]

Maybe your coworker is in the same boat, no more sick days and will be written up he he misses.
Just wash your hands often, get clorox wipes for you phone and keyboard and in general practice good hygiene, you can't control what others do, only what you do.

 

[GoldieSaysMeep]

He's never taken a sick day.

 

[DebbieB]

Do you have an HR Department? I would talk to them.

 

[The Mystery Machine]

Legal rights? As long as the guy is not sporting a fever, I don't see any issue other than it is annoying to put up with. It is probably allergies. I know ragweed has started here.

Wash your hands alot.

Maybe pretend to throw up in the trash while he is coughing....just kidding.

 

[minkydog]

I doubt you have any rights to force this guy to leave work due to illness. Is this a new situation or has he always coughed and carried on? Is he a smoker? Smokers often have a phlemy cough. Does he have a chronic illness, like asthma or COPD? Those can cause a chronic, non-contagious cough.

Wash your hands, wipe down your area with Disinfectant wipes everyday(including your keyboard and phone) and put up with it.

 

[janey99]

You are probably not going to like this, but here goes.

You have no evidence that your co-worker has anything contagious, and thus that you are in a an "unsafe" environment.

Further, you have no right to know anything about his medical situation.

You have been arguably harassing him, and if I was him, I would have complained about you to HR already.

Your fears sound a bit irrational - just because you have no sick days left, doesn't mean you deserve a sterile environment in which to work. I could not even count the number of potential exposures to sickness that most people encounter just by living their lives every day in the world. It is just a fact of life that people get sick. How could you even know for certain where any particular illness came from?

Eventually, if this has not happened already (and I suspect it has because your manager does not sound like she's being very tolerant of you), you are going to be viewed as a problem employee who is a complainer and a troublemaker.

Finally, I suspect you are gearing up for taking some sick days, and then trying to protest when they write you up because after all, you only got sick because they refused to send your co-worker home. Please don't go there - I don't see a good end to that argument for you.

Jane

 

[Kathi OD]

Every symptom you describe leads me to believe that your coworker has seasonal allergies and not something contagious. Give the man a break. He probably feels rotten.

If everyone had the same work ethic he does, no one would have to worry about not having sick days to use when they are REALLY sick.

 

[Mom2Nick]

Unless you are under contract, I believe you have the legal right to quit if you are unhappy with your co-workers misery.

 

[Scurvy]

As much as I sympathize (and trust me, I do - I hate it when people expose others to their illnesses!) I think the only right you have is to try to find a different job. The "good" news is that with most common illnesses you would have already been exposed to his germs (probably before you ever knew he was sick) so moving at this point wouldn't make a difference.

For what it's worth, it sounds like allergies or a sinus infection to me, so hopefully you'll be okay.

 

[Pakey]

You cannot be written up for taking too much sick time as long as you have doctors' notes. I'm assuming that since you are earning sick benefits, you have been employed with this employer long enough to be eligible for FMLA. As long as you have doctor note, you can stay home. The fact that you will be unpaid is your problem, not the employer's.

You have no legal rights. Your coworker is not required to use his sick leave to accommodate you. I also agree with PP, you could get into trouble for harrassing him by constantly mentioning his illness and plying him with OTC drugs (which is a huge no-no). You are fortunate he has not went to HR complaining about you. Stop giving him any OTC drugs please.

 

[wvjules]

Wear headphones to block out the noises. I work in cubicle land and headphones are a lifesaver!

And I agree with the PP, you are on the verge of harassing HIM!

 

[sbell111]

You cannot be written up for taking too much sick time as long as you have doctors' notes. ...

I'm pretty positive that this is not correct. In fact, I fired someone pretty recently for using too much sick leave and have two employees within the disciplinary process right now for the same thing.

Here's a FAQ regarding FMLA.

This is what FMLA mandates:

Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

Serious medical condition is defined as:

an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The “continuing treatment” test for a serious health condition under the regulations may be met through

1. a period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice, or once with a continuing regimen of treatment,
2. any period of incapacity related to pregnancy or for prenatal care,
3. any period of incapacity or treatment for a chronic serious health condition,
4. a period of incapacity for permanent or long-term conditions for which treatment may not be effective, or
5. any period of incapacity to receive multiple treatments (including recovery from those treatments) for restorative surgery, or for a condition which would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment.

Most typical sick calls do not fall under these requirements, even if a doctor's note is provided.

 

[Chicago526]

I'm totally sympathetic. Those employees that have sick time should take it when they are ill to this extent.

That said, there is nothing that forces people to do so, as anoying as it is.

The good news is that if this has been going on for 10 days, you've already been exposed (if he's contagous in the first place) and if you haven't gotten sick by now, you aren't likely to. All you can do is do your best to put it out of your mind and to focus on your work again. Stress can cause your immune system to suffer, so you need to calm down before you make youself sick! Try to relax, eat well, exercise a bit, take some vitamins, and wash your hands frequently. That's your best bet to staying healthy until you get more sick time again.

Good luck!

 

[PaddingtonBear]

I have an annoying co-worker who hacks, snarfles, coughs, makes nasty hocking-a-lugie sounds. I can't imagine embarassing him by letting him know how gross he is. I figure he just can't help it, and even if he can, common courtesy and manners dictate that its not polite to point out someone else's icky.

 

[lillygator]

You are probably not going to like this, but here goes.

You have no evidence that your co-worker has anything contagious, and thus that you are in a an "unsafe" environment.

Further, you have no right to know anything about his medical situation.

You have been arguably harassing him, and if I was him, I would have complained about you to HR already.

Your fears sound a bit irrational - just because you have no sick days left, doesn't mean you deserve a sterile environment in which to work. I could not even count the number of potential exposures to sickness that most people encounter just by living their lives every day in the world. It is just a fact of life that people get sick. How could you even know for certain where any particular illness came from?

Eventually, if this has not happened already (and I suspect it has because your manager does not sound like she's being very tolerant of you), you are going to be viewed as a problem employee who is a complainer and a troublemaker.

Finally, I suspect you are gearing up for taking some sick days, and then trying to protest when they write you up because after all, you only got sick because they refused to send your co-worker home. Please don't go there - I don't see a good end to that argument for you.

Jane

 

[DizBelle]

I have an annoying co-worker who hacks, snarfles, coughs, makes nasty hocking-a-lugie sounds. I can't imagine embarassing him by letting him know how gross he is. I figure he just can't help it, and even if he can, common courtesy and manners dictate that its not polite to point out someone else's icky.

Isn't is also not polite to BE icky around other people.

So, someone blows snot rockets on the floor around you and you're just supposed to put up with it? If more people were called on their poor behavior, there would be less of it.

OP - did you talk to your boss from the perspective on how this is disruptive to your work and productivity? You don't need absolute silence but constant, all day snorting is really unacceptable.

 

[sbell111]

I have an annoying co-worker who hacks, snarfles, coughs, makes nasty hocking-a-lugie sounds. I can't imagine embarassing him by letting him know how gross he is. I figure he just can't help it, and even if he can, common courtesy and manners dictate that its not polite to point out someone else's icky.

I had a peer who did this as well as other irritating habits. Thankfully, she finally got another job and moved on.