The United States is now approximately four months out from when states and localities began to shelter-in-place due to the serious health concerns of COVID-19. Many employers initially scrambled to determine whether to furlough or terminate their employees, while others implemented work-from-home policies and procedures. Although most states have moved into phases two or three of reopening, the ever-growing number of positive COVID-19 cases presents ongoing hurdles for employers seeking to bring employees back into the workplace. So what happens if your employee refuses to return to work?
Prior to bringing employees back into the workplace, every employer should have a plan in place for adhering to the latest guidance and recommendations issued by state and local health departments, the Centers for Disease Control (CDC), the Occupational Safety and Health Administration (OSHA) and other reliable sources. It is important to have a plan so that your organization can clearly communicate to employees the steps being taken to ensure the health and safety of all employees, vendors, clients, etc. Employers should also decide whether to have all employees return at once or if a rolling or voluntary return is a better option for its workforce. Additionally, employers should consider having its human resources (HR) professionals provide training to managers and supervisors who may be the first line of contact for employees asking questions or raising COVID-related concerns. Now that these precautions have been taken, your organization is ready to bring back its workforce.
Your organization has taken the appropriate precautions, communicated a return-to-work date to employees, and is open for business. Then, an employee calls or e-mails the organization and states that he or she will not be returning to work. What do you do? First, you need to get clarification as to why the employee is not returning to work. There are several scenarios that can play out based on the employee’s response and here are a few:
- Scenario A: Employee reports that he or she been exposed to or tested positive for COVID-19. – Your organization is safer if the employee remains home, quarantines for the appropriate amount of time, and preferably gets a negative test before returning to work. During this time, you can have the employee check in weekly with his or her supervisor or a designated HR person in order to determine when it is suitable for the employee to return to work. The employee may also be eligible for paid leave under the Families First Coronavirus Response Act (FFCRA) if your organization is covered.
- Scenario B: Employee reports that he or she is part of the higher risk group and does not feel comfortable returning to work. – Your organization has the right to ask more questions and/or request medical documentation from the employee confirming that he or she falls into the higher risk group. If the employee’s status in the higher risk group is confirmed, your organization must determine whether it is covered by the FFCRA and, if so, whether this employee is also covered (beyond the initial two weeks). If yes, communicate to your employee that he or she is eligible for pay and leave benefits under the FFCRA. If your organization is not covered by the FFCRA, you still need to determine whether your organization is covered by the Family Medical Leave Act (FMLA) and, if so, whether this employee is eligible for protected leave. If yes, your organization should send the appropriate FMLA notification and allow the employee up to twelve weeks of unpaid leave. If your analysis under the FFCRA and FMLA both result in a no answer, then you need to determine whether this employee is seeking to work from home, work with modifications or not work at all. If the employee seeks to work from home or work with modifications (for example, a different schedule or a modified work environment with plexiglass or limited exposure to others) your organization needs to then go through the interactive process under the Americans with Disabilities Act (ADA) to determine whether it can provide a reasonable accommodation for this employee. If the answer is no, then you are free to terminate the employee’s employment. While this may seem like a cumbersome process, it is necessary to protect your organization from future litigation.
- Scenario C: Employee reports that he or she is taking care of a relative who is subject to COVID-related quarantine or a child under the age of 18 whose school or childcare facility is closed and thus cannot return to work. – Your organization must go through the above analysis with regard to eligibility under the FFCRA and the FMLA. If the answer is no to eligibility under both statutes, then your organization is free to either provide a discretionary leave of absence (advisably for a set period of time) or terminate the employee’s employment. Additionally, while this latter scenario does not require the ADA analysis, there is no law prohibiting an employer from allowing an employee in this situation to work from home or have other work modifications if feasible for their position. Just be sure to be consistent across racial, age, sex, and other protected categories.
- Scenario D: Employee reports that he or she is uncomfortable returning to work while there is no cure for COVID-19. – Your organization is under no obligation to keep this employee employed. Americans all across the country are having to make the difficult decision of whether or not to return to work amid COVID-19. These are deeply personal decisions. Likewise, employers across America are balancing the safety of their employees with the business necessity to resume operations. There will be situations where employers chose to reopen and employees chose not to return. Employers who are in a position to allow employees to work from home for an extended period may consider doing so as such would be good for employee morale. However, employers who need their employees physically present in the workplace may have to make the tough decision to separate employees who refuse to return to work.
- Scenario E: Employee reports that he or she does not wish to return to work until his or her unemployment benefits run out. – Your organization is again under no obligation to keep this employee employed. Unemployment benefits are for employees who do not have work – not for employees who do not wish to work. Certainly, some lower wage earners are in no rush to return to work and relinquish the extra federal unemployment subsidy provided by the Federal Pandemic Unemployment Compensation (FPUC) program. Yet, the FPUC benefits are slated to end this month for most states. That means that persons receiving unemployment benefits will see a $600 decrease in their weekly benefits and should think long and hard about refusing to return to work. Still, it is their decision, and employers should not feel obligated to maintain positions for employers who chose not to return when work is available.
This list of scenarios is not exhaustive and employers would be wise to rely on seasoned HR professionals and/or trusted employment counsel as they navigate these return to work waters. As mentioned above, numerous laws including the FFCRA, FMLA, ADA, Americans with Disabilities Amendments Act (ADAAA), OSHA, and state workers’ compensation laws should all be part of an employer’s considerations when making employment decisions during this time period. It may also be prudent to select a COVID point person within the organization to review all COVID-related employment decisions and ensure consistency. Under the shadow of this global pandemic, employment decisions for the foreseeable future won’t be easy. Yet, with the right planning and advisors, employers can have confidence that they are making the best decisions.