When states and localities first began sheltering in place because of COVID-19, many employers scrambled to determine whether to furlough or terminate employees, while others set up work-from-home policies and procedures.
Although most states have moved into phases two or three of reopening, the ever-growing number of positive coronavirus cases presents ongoing hurdles for employers seeking to bring employees back into the workplace. So, what happens if an employee refuses to return?
Preliminary Steps
Before bringing employees back to work, you should have a plan in place to follow the latest guidance and recommendations from state and local health departments, the U.S. Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and other reliable sources. It’s important to have a plan so you can clearly show employees the steps you’re taking to ensure their health and safety as well as that of vendors, clients, and others.
Next, decide whether to have all employees return at once or use a rolling or voluntary return as a better option for your workforce. Also, consider having your HR professionals provide training to managers and supervisors who may be the first line of contact when employees ask questions or raise COVID-related concerns. Then, you’re ready to communicate a return-to-work date to employees and reopen for business.
5 Possible Scenarios
If an employee calls or e-mails to let you know he won’t be returning to work, you first need to find out why. Depending on the answer, any number of scenarios can play out. Here are five.
1. Employee has 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 the away time, you can have the employee check in weekly with a supervisor or a designated HR person to determine when it’s suitable for him to return to work. He also may be eligible for paid leave under the Families First Coronavirus Response Act (FFCRA) if your organization is covered.
2. Employee says she is part of a higher-risk group and doesn’t feel comfortable returning to work. Your organization has the right to ask more questions and/or request medical documentation confirming she falls into the higher-risk group.
If her status in the group is confirmed, your organization must determine whether it’s covered by the FFCRA and, if so, whether the employee is also covered (beyond the initial 2 weeks). If yes, let her know she is eligible for pay and leave benefits under the Act.
If your organization isn’t covered by the FFCRA, you still need to determine whether you fall under the jurisdiction of the Family and Medical Leave Act (FMLA) and, if so, whether the employee is eligible for protected leave. If yes, your organization should send the appropriate FMLA notification and allow her to take up to 12 weeks of unpaid leave.
If your analysis under the FFCRA and the FMLA both result in a no answer, then you must determine whether the employee is seeking to work from home, work with modifications, or not work at all.
If she is aiming to work from home or with modifications (for example, relying on a different schedule or a modified work environment with plexiglass or limited exposure to others), you must go through the interactive process under the Americans with Disabilities Act (ADA) to determine whether you can provide a reasonable accommodation. If the answer is no, you’re free to terminate the individual.
While the process may seem cumbersome, it’s necessary to protect your organization from future litigation.
3. Employee is caring for a relative subject to coronavirus-related quarantine or a child under 18 whose school or childcare facility is closed. 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 you’re free to provide a discretionary leave of absence (advisably for a set period of time) or terminate the individual.
Additionally, while the third scenario doesn’t require the ADA analysis, there’s no law prohibiting you from allowing the employee to work from home or have other modifications if feasible for the position. Just be consistent across race, age, sex, and other protected categories.
4. Employee is uncomfortable returning to work until a cure for COVID-19 is found. Your organization is under no obligation to keep the employee employed. Americans are having to make difficult and deeply personal decisions about whether to return to work during the pandemic. Likewise, employers are balancing employee safety with the business necessity to resume operations. In some instances, you’ll choose to reopen, and employees will decide not to return.
If feasible, you may allow employees to work from home for an extended period, which would help morale. But, if you need them to be physically present in the workplace, you may have to make the tough decision to discharge those who refuse to return.
5. Employee wants to put off returning until after jobless benefits run out. Your organization is again under no obligation to keep the employee employed. Unemployment benefits are for people who don’t have work—not for employees who don’t wish to work.
However, the Federal Pandemic Unemployment Compensation (FPUC) program, which offered an extra $600 in weekly unemployment, has since run out. That means persons receiving unemployment benefits will see a $600 decrease in their weekly check and should think long and hard about refusing to return to work. Still, it’s their decision, and you shouldn’t feel obligated to keep their positions open until they opt to return.
Bottom Line
The list of scenarios isn’t exhaustive. You’d be wise to rely on seasoned HR professionals and/or trusted employment counsel as you navigate the return-to-work waters. It also may be prudent to select a COVID-19 point person within your organization to review all virus-related employment decisions and ensure consistency.
Under the global pandemic’s shadow, employment decisions won’t be easy for the foreseeable future. Yet, with the right planning and advisers, you can have confidence you’re making the best moves.
Shawntel R. Hebert is an attorney with Taylor English Duma LLP in Atlanta. You can reach her at shebert@taylorenglish.com.