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What Should Employers Do When Employees Refuse To Return To Work For Fear Of COVID-19?

Written by: Melanie V. Slaton, Esq.Mariel E. Smith, Esq., and Nicholas J. Garcia, Esq.

As states struggle through the process of re-opening in the wake of COVD-19, many employers are also wrestling with the question of what to do about employees who refuse work due to safety concerns or in order to take advantage of recently increased unemployment benefits.

Alabama Department of Labor Secretary Fitzgerald Washington has taken a very aggressive approach, as any return to work COVID lawyer for employers would tell you.

“It’s important for workers to know that if their employer reopens or otherwise calls them back to work, they must do so, unless they have a good work-related cause,” Washington recently said.

Alabama encouraged companies to report employees suspected of refusing work without “a good work-related cause.” In Alabama, employees can attempt “to collect unemployment benefits after quitting without a good work-related cause can be considered fraud.”  The Alabama Department of Labor issued a News Release April 23, which you can read here: https://labor.alabama.gov/news_feed/News_Page.aspx?id=226.

The rapidly evolving health and economic landscape surrounding the novel Coronavirus has left employees, companies, states and return to work COVID lawyers for employers  with some tough choices. The Families First Coronavirus Response Act (“FFCRA”) that is discussed in detail below lays out the reasons for an employee to legitimately decline work that’s offered by the company.

But what if the employee just feels a vague, general fear of catching the virus if they return to their workplace?

Beyond the technical state employment law rules, states and companies may risk substantial negative public relations blowback if the transition to re-opening is handled poorly.

The headline from a May 1 New York Times article is illustrative of the dilemma both for employees and bosses: “Your Life or Your Livelihood.” The Times article cites Iowa and Oklahoma as taking a similar stance to Alabama on the matter, also encouraging companies to report employees who do not show up without good reason. You can read the entire article here:  https://tinyurl.com/according-to-the-Times.

So, what should an employer and a return to work COVID lawyer for employers do when employees refuse to come back?

Under the FFCRA, an employee may legally stay home and be entitled to sick leave pay from his or her employer if one of the six factors apply:

  1. Employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. Employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Companies should seek counsel from a return to work COVID lawyer for employers who can help them create written notifications, bulletins and other information about the need to return to work and the employee’s rights under the FFCRA. Notice of employees’ FFCRA rights should also be posted on company premises and emailed to employees not on premises. The DOL notice can be found here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

Companies may also request documentation and require employees to complete forms in support of these requests, which a return to work COVID lawyer for employers can assist with.

But what happens when an employee’s absence from work is not based on one of the six factors outlined above, but is based on a general feeling of not being safe at work due to COVID-19?  Many employees throughout different industries have expressed the need for increased safety at work, and in some instances they have urged employers to take measures that go above and beyond that of local and state government requirements.  In these instances, companies should ensure they are following all labor and employment laws in responding to their employees’ refusal to report for their job.

First, companies should ensure that they inquire into the reason(s) employees do not want to return to their job and they should consult with a return to work COVID lawyer for employers to ensure they understand what reasons are — and are not — covered by the FFCRA.

If the reason is covered by FFCRA, the employer must provide sick leave pay.  If it is for another specific reason, the employer must inquire further to identify the employee’s concern, and a return to work COVID lawyer for employers can help companies navigate the sometimes tricky judgment calls that determine whether the reason is valid.

In addition to the FFCRA factors, there are other legal reasons an employee can refuse to work, such as if he or she believes he or she is in imminent danger, according to the Occupational Safety and Health Act (OSHA). See “Coronavirus and the Workplace: Fast Facts for Employers,” by Jacqueline Voronov & Jeffrey M. Daitz, https://hallboothsmith.com/coronavirus-and-the-workplace-fast-facts-for-employers/.

If an employee’s fear is based on an actual danger and the employer is unable to create a safe environment, the employee can refuse to come to work.  Therefore, employers must do everything reasonably possible to make the environment safe, such as providing masks, allowing employees to work remotely, when possible, deep cleaning and disinfecting, and even checking employees’ temperatures.

Second, companies must consider employee’s requests in the context of the Americans with Disabilities Act (ADA).  The EEOC has provided guidance on COVID-19 and the ADA by providing strategies to employers in responding to requests made by employees, especially those with pre-existing conditions or a disability, and an experienced return to work COVID lawyer for employers can help companies review and decide how to proceed with those requests.

The EEOC suggests if not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance, or other accommodations that reduce chances of exposure.  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

If an employee has been receiving unemployment benefits while out of work, and his/her refusal to return to work is not based on any of the aforementioned reasons, the employer may have grounds to terminate, suspend, or otherwise discipline the employee. Should that occur, it’s important to engage a return to work COVID lawyer for employers to ensure this is done properly and in accordance with labor laws.

Employees should be made aware that a refusal to return to work not based on a COVID-19 circumstance could lead to termination.  Companies must be certain they are implementing such disciplinary measures in a fair and non-discriminatory manner.  Employers must also avoid disciplinary actions that have a discriminatory effect on protected classes (race, color, religion, national origin, sex, age, disability, veteran status, genetic information, and citizenship).  The same principles of fairness and non-discriminatory action apply to selecting which employees are being called back to their jobs.

The bottom line is the best way companies can encourage their employees to return to their job is to ensure their health and safety, and a return to work COVID lawyer for employers can help create best practices, policies and procedures that make this process as easy as possible.  Employers must make every effort to follow each and every safety precaution as recommended by the Center for Disease Control (“CDC”), the World Health Organization (“WHO”), and the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”), and local government.

For example, gyms and salons in Georgia must follow an executive order by our Governor, which requires certain measures be taken such as screening patrons and employees for symptoms, providing hand sanitizer, wiping down equipment, wearing masks, and requiring all individuals to be six feet apart.  Restaurants are explicitly required to train all employees on the importance and expectation of increased frequency of handwashing, use of hand sanitizers with at least 60% alcohol, and provide clear instruction to avoid touching hands to face.

As a best practice, employers should consider distributing to all their employees a list of all of the safety precautions and cleaning measures being implemented, and a return to work COVID lawyer for employers can assist with creating these flyers and other documents that can be posted in break rooms and staff lounges.  Such notification can help employers avoid liability and violations of federal and state law, regulations (including OSHA), and executive orders.

Companies should carefully draft safety and health plans as well as an “Employee Return to Work Plans” to ensure they avoid liability and penalties under applicable Federal law, State law, and executive orders.  Despite some states, such as Georgia, entering orders in an effort to shield businesses from liability when acting in accordance with executive orders, such language in executive orders almost certainly does not create immunity from federal and state employment and labor laws.  Most importantly, it does not extinguish any duty to keep your employees safe, nor does it extinguish any liability from failing to do so, including workers’ compensation litigation.

It’s important that every company review the state employment laws, executive orders, and local government orders and ordinances in every location they operate, and the experienced employment and labor lawyers of Hall Booth Smith, P.C. would be happy to provide counsel on how to smoothly return to work after the pandemic.