Over the course of the COVID-19 pandemic, many employers allowed their workforce to perform their jobs remotely to mitigate the risk of exposure. Now that COVID-19 cases have decreased, some employers have begun to resume in-person operations and called employees back to the office. Some employees may not be ready to return to physical workplaces. Workers could be unwilling because they are sick, are at high-risk for complications due to COVID-19, have high-risk family members, have small children, are caregivers, or are simply afraid of possible exposure to COVID-19.
Under “normal” circumstances, an employee cannot simply refuse to come to work. If an employee refuses to report to work due to COVID-19 but has not tested positive, does not have symptoms, and is not caring for someone with COVID-19, there may not be a legal reason to excuse the employee’s absence – at least on the surface.
In order to understand why the employee is not willing to return to work, it is important to understand the reason(s). Before taking action against an employee, here are a few factors employers must consider:
Employers are required to reasonably accommodate employees under the Americans with Disabilities Act (ADA) and state disability laws. The ADA prohibits discrimination by an employer against any “qualified individual with a known disability” regarding job applications, hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment. Employers must consider “reasonable accommodation” through what is known as an “interactive discussion” with the employee. An interactive discussion requires a collaborative effort between the employee, their healthcare provider, and the employer to identify a reasonable workplace solution that enables the employee to perform the essential functions of their job.
In addition to employees who have contracted the COVID-19 virus, accommodations may be required for employees considered to be “high-risk.” The Centers for Disease Control and Prevention (CDC) has identified high-risk individuals to include older adults, people with cancer, chronic kidney disease, chronic lung disease, dementia or other neurological conditions, diabetes, down syndrome, heart conditions, HIV infections, an immunocompromised state, mental health conditions, being overweight or obese, pregnancy, sick cell disease, current or former smokers, solid organ or blood stem cell transplant patients, stroke or cerebrovascular disease patients, those with substance abuse disorders, tuberculosis, or those who have suffered from long-standing systemic health and social inequities. Employees that meet any of these definitions may seek accommodation from their employer.
The ADA equally protects mental health conditions, such as anxiety, depression, and PTSD, and reasonable accommodation must be considered.
Examples of reasonable accommodation may include remote work, staggered shifts, alternate personal protective equipment (PPE), or even a leave of absence.
Protected Leave Options
Employees who cannot return to work may be eligible for leave under federal, state, or local law. The Families First Coronavirus Response Act (FFCRA), which mandated paid leave for COVID-related reasons, expired on September 30, 2020. However, the Family and Medical Leave Act (FMLA) may apply for eligible employees. Additionally, other protections may include ADA, Washington Family Care Act, Washington’s Paid Family and Medical Leave, Oregon Family and Medical Leave Act (OFLA), and protected sick leave. Employees taking leave under these laws are likely entitled to job restoration and are protected from retaliation.
However, even if the employee is not eligible for protected leave, employers should consider whether an unpaid leave of absence would burden the company if it could help the employee. There is no requirement to pay the employee for the absence unless the employee is working remotely or if some type of paid leave is available.
Under the federal Occupational Safety and Health Administration (OSHA) requirements, employers must provide a safe workplace for employees. Employees have a right to refuse to report to work if they reasonably fear doing so would present danger to their safety and health. This is true for state-run safety plans as well.
When addressing an employee’s fear of returning to work due to safety concerns, it is important for employers to reinforce that the company is maintaining and complying with all recommended guidelines by the CDC and other reputable agencies. This may include adopting and updating safety and workplace policies detailing the employer’s steps to keep the workplace safe. Employers must regularly communicate and consistently enforce safety standards such as routine cleaning, physical distancing, regular monitoring, and any recommended or required personal protective equipment (PPE). This also includes ensuring employees know how to bring safety concerns to the employer’s attention and that their concerns will be immediately addressed. Employers are obligated to provide their workers with the PPE needed to keep them safe while performing their jobs. The types of PPE required will be based on the risk of COVID-19 exposure.
The CDC and local health departments also recommend COVID-19 symptom screening before allowing employees to enter the workplace.
Employees may have concerns regarding the outside activities of co-workers – i.e., their spouse works for a nursing home or hospital, or a family member works in the healthcare industry. Employers should be prepared to address these concerns by affirming their commitment to a safe work environment and keeping an open dialogue regarding employee concerns, along with a policy prohibiting retaliation for reporting safety concerns. Employers should also remind employees to refrain from workplace gossip and ensure that no harassment occurs.
Employee Morale and Open Communication
Returning to work during these uncertain times may create uneasiness for many employees. Employers must prepare for increased communication and focus on morale with employees. This might include reminding employees about the company’s Employee Assistance Program (EAP), if available, and regular status updates from senior leadership to promote employee trust and continued engagement.
It is important to be sensitive and compassionate during these unprecedented times. However, if after reviewing the circumstances, the employee continues to refuse to work and it’s available to them, refusal to work or perform certain work may be considered job abandonment. This abandonment is generally documented as a voluntary resignation. Employers should document any conversations or measures taken to encourage the employee to return to work, including confirmation of the resignation after all options have been exhausted.
Employers are encouraged to seek legal counsel before taking action against an employee that refuses to work. Eligible members are encouraged to contact the HR Hotline with any questions or to seek guidance. Members are also encouraged to visit mozzo, Archbright’s online platform, to access resources such as COVID-19 Scenarios and Benefits Chart, COVID-19 Employee Screening Form, and a comprehensive Infectious Disease plan and checklist. Additionally, we have our COVID-19 resources available by completing this form for access.