With flu season at its peak, small companies are likely feeling the toll of sick workers on both productivity levels and bottom lines. One thing business owners want to avoid throwing into this sickly winter mix—a lawsuit.

When it comes to paid time off and sick leave, small businesses face different regulations depending on the size of the company.

Karen Harned, legal counsel for the National Federation of Independent Business, said all businesses with 50 employees and up must meet the requirements of the Family Medical Leave Act (FMLA). If a worker requests three days or more off due to illness, you do have to allow them the time off. You don’t, however, have to pay them.

“That gives them protected time off, and you have to grant it,” Harned said.

Harned said you should stipulate your workers take their paid time off first, before deferring to the FMLA coverage.

“Companies will say that you are required to take your paid sick leave,” she said. “You can’t save your paid sick time for later if you are claiming FMLA time.”

Part-time workers fall into a different category as far as paid sick time is concerned. If they have worked for an employer for at least 1,250 hours in a 12-month period, they will be covered under the FMLA. Again, a business must be at the 50-employee level or more for this stipulation.

For companies at the 50-employee level and below, your policy on sick time and paying workers is your own to create, Harned said. Many businesses don’t choose to pay their workers for sick time, because it is a burden on them financially. But having paid sick time can be a competitive edge for smaller companies, so it’s something to consider.

“If you only have five employees and one person is out, it’s a big deal,” she said. “So to say in addition to that, that you have to give them time off and pay them, it’s a double blow. But it’s not in your best interest to want these sick people in the office.”

The one surefire way to avoid a lawsuit when it comes to paid sick leave is consistency, Harned said. When you write your business policy, be clear on how you will handle absences and illnesses, and stick to it.

“Honestly, inconsistency is where most people get sued,” Harned said.

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