Matthew H. Parker, an attorney with Whelan Corrente & Flanders LLP in Providence, Rhode Island, sees three reasons for the hesitancy: (1) a fear of contracting the virus by going back into the workplace, (2) a need to stay home to care for children whose schools and daycares are closed, and (3) a reluctance to give up unemployment benefits.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on March 27, includes a $600 weekly payment in addition to regular unemployment benefits through July. That bonus means—for the short term—some employees are earning more from unemployment than they earned from their jobs.
What if an employee doesn’t want to return to work and give up the unemployment benefit? Parker says he tells employers to inform those employees the company will be straightforward with the state labor agency in reporting that an offer of employment has been made. That should send a message to reluctant employees that if they don’t have a good explanation for not returning to work, their benefits will be in jeopardy.
Gary Fealk, an attorney with Bodman PLC in Troy, Michigan, says some states have added new qualifying reasons for unemployment, such as suffering from COVID-19 symptoms or needing to self-isolate, but if an employee doesn’t have a qualifying reason for not returning to work when called back, the employer may protest unemployment benefits and the employee may be disqualified and even required to pay back any benefits improperly received.
If employees don’t qualify under any of the laws providing leave, they can be required to return to work, Fealk says. If they don’t, the employer can protest unemployment benefits, provide a COBRA notice, and terminate employment. But employers must take care to treat similarly situated employees the same, and they must be sure they don’t retaliate against employees for any protected activity.
Dina M Mastellone, an attorney with Genova Burns LLC in Newark, New Jersey, says that although employees generally lose unemployment benefits if they don’t return to work, “employers still need to evaluate an employee’s reason as to why they cannot return to work on a case-by-case basis in order to determine whether or not they may be eligible for federal, state, and/or local leave laws, including paid sick, family, or school closure leave.”
Before terminating an employee who is afraid to return to work, employers should engage in the interactive process as required by the Americans with Disabilities Act (ADA) and other laws to determine whether the employee’s refusal to return to work is protected by law, Mastellone says.
For example, employees who suffer from anxiety may require an accommodation under the ADA if they have medical documentation to support their claim that returning to work would exacerbate their disability.
Some states have laws prohibiting penalizing employees for requesting or taking time off because of COVID-19. “Employers need to be mindful that the COVID-19 pandemic will subside. Antidiscrimination laws will endure,” Mastellone says.
Lauren E.M. Russell, an attorney with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Delaware, says the biggest employer concern she sees is employees fighting the return to work because of generous unemployment benefits. That’s especially a problem for employers that received loans under the Paycheck Protection Program (PPP).
Employers receiving PPP loans will have their loans forgiven if they are able to keep employees on the payroll or bring them back quickly. The enhanced unemployment benefit “has been a struggle for many businesses that are working to comply with the terms for forgiveness of a PPP loan,” she says.
What recourse do employers have if employees resist going back to work out of fear of contracting the virus? “This is a tough question, as it is largely unexplored,” Russell says. Many employees have generalized anxiety about being on-site, and it’s likely that a state labor agency would find those people voluntarily unemployed and therefore ineligible for benefits.
“However, many employees may have valid concerns about returning to the worksite, such as inadequate employer safety protocols or the employee’s status as high risk for negative outcomes if infected with COVID-19,” Russell says.
Employees aren’t the only ones hesitant about resuming operations. Many employers also are concerned about safety and legal liability as they reopen. Parker says he has gotten “a ton of questions” from worried employers. His best advice is for employers to follow the guidelines that have been published by both the U.S. Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA).
Following those guidelines may not be an absolute defense, but it’s the best an employer can do, Parker says. If a negligence claim happens, the employer can at least point to having followed the guidelines.
In addition to following CDC and OSHA guidance, employers need to comply with applicable state and municipal orders, Parker says. For example, in his state—Rhode Island—the governor has issued an Executive Order requiring businesses that are open to provide employees with face coverings or materials for employees to make their own.
“At this point, I think the best thing employers can do is follow all of the applicable guidance out there so that they cannot be accused later of not doing enough,” Parker says.
Mastellone also says employers need to follow guidelines and provide necessary personal protective equipment (PPE), such as masks, gloves, and hand sanitizers, and they should step up their disinfecting of high-contact areas.
“The threat of lawsuits filed by employees will always exist; however, implementing policies and procedures that are consistent with the guidelines from the CDC, state, and local public health authorities can bolster an employer’s defense to claims,” Mastellone says.
Shannon S. Pierce, an attorney at Fennemore Craig, P.C., in Reno, Nevada, says that although there are few hard-and-fast rules that apply equally to all businesses, “one common requirement that all businesses should keep in mind is OSHA’s requirement that employers provide a workplace that is safe and free from recognized hazards.”
Pierce also points to guidance from the CDC and OSHA that can help employers assess how high the risk of COVID-19 exposure is in each type of business and what preventative measures employers should consider. While each case must be assessed individually, following that guidance “is a strong first step” toward meeting an employer’s obligation.
“Whether additional measures are necessary is a subject best discussed with the business’s employment counsel,” Pierce says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.