As employers prepare to return employees to work and resume operations, employees may not be ready to return to physical workplaces. Workers could be unwilling to return to work because they are sick; are high-risk individuals; are caregivers for sick family members; are caregivers for children if schools or daycare centers are closed; have at-risk people at home, such as immunocompromised family members; or are simply afraid to come to work because of fear of possible exposure.
Under normal circumstances, an employee cannot simply refuse 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.
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 considerations employers must consider:
Employers must prepare for ADA implications for high-risk employees not ready to return to work and/or continue to need accommodation. 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 have an obligation to consider “reasonable accommodation” through what is known as an “interactive discussion” with the employee.
In addition to employees that have contracted the virus, additional accommodations may be required for employees considered to be “high risk” for contracting the virus. The Centers for Disease Control and Prevention (CDC) has identified high-risk individuals to include people over the age of 65 and people with chronic lung disease or moderate to severe asthma, serious heart conditions, immunocompromised, severe obesity, diabetes, chronic kidney disease undergoing dialysis, or liver disease. Employees that meet any of these definitions may seek accommodation from their employer.
Employers must also keep in mind mental health conditions such as anxiety, PTSD, or being scared or anxious to come to work. It may not appear to be a reasonable fear to the employer, but mental health conditions are equally protected by the ADA, and reasonable accommodation must be considered. Examples of reasonable accommodation may include workplace accommodations, remote work, staggered shifts, alternate PPE, or even a leave of absence.
Protected Leave Options
Employees may be eligible for leave under federal, state, or local law. The Families First Coronavirus Response Act (FFCRA) became effective April 1, 2020 and contains two significant provisions for employers to be aware of: Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act. Under the Emergency Paid Sick Leave Act, employees are eligible for leave if they are:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
- Are caring for an individual subject to quarantine order or advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Are caring for a child whose school has been closed, or whose childcare provider is unavailable due to COVID-19 precautions; or
- Are experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Under the Emergency FMLA, employees are eligible for up to 12 weeks of paid emergency family and medical leave if they are unable to work or telework due to a need for leave to care for their child under 18 years old because their child’s school or daycare is closed due to a public health emergency. Leave under the FFCRA is protected, and employees may not be retaliated against for taking leave under this new law.
In addition to paid leave provided under the FFCRA, the Family and Medical Leave Act (FMLA) may apply for eligible employees. Other protections may include ADA, Washington Family Care Act, Washington’s Paid Family Leave Act, Oregon Family and Medical Leave Act (OFLA), and protected sick leave under Washington and/or Oregon law for an employee and family member or if school or daycare closure is mandated by a public official. Employees taking leave under these laws are likely entitled to job restoration and anti-retaliation.
However, if the employee is not eligible for FFCRA or other protected leave, while not required to provide leave under the law, employers should consider whether an unpaid leave of absence would be a burden on the company. There is no requirement to pay the employee for the absence unless the employee is working remotely and/or paid time off or other paid leave is available.
Under OSHA requirements, employers have a duty to 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.
When addressing an employee’s fear of returning to work due to safety concerns, employers need to reinforce that the company is maintaining and enforcing all recommended guidelines by the CDC and other reputable agencies, including how to handle employees exposed to COVID-19. This may include adopting new safety and workplace policies detailing the steps the employer is taking 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 PPE. Ensure employees know where 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 PPE needed to keep them safe while performing their jobs. The types of PPE required during a COVID-19 outbreak will be based on the risk of being infected with SARS-CoV-2 while working and job tasks that may lead to exposure.
Employers must continue ensuring safety standards, including appropriate screening of employees and physical distancing as recommended by the (CDC) and World Health Organization (WHO). Employers should consider appropriate screening, including temperature taking, under the EEOC’s pandemic rules.
Employees may also have concerns regarding interactions co-workers have outside of work – i.e., 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.
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 work is available to them, refusal to work (or perform certain work) may be considered job abandonment – which is generally documented as a voluntary resignation. Under emergency unemployment rules, the employee may be eligible for unemployed benefits, but this does not necessarily mean job protection. 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. Eligible members may also access Archbright’s comprehensive KeyNotes and sample policies available on the Archbright Toolkit and COVID Resources page located on the Members Only website, including a comprehensive Workplace Safety plan and checklist.