As businesses reopen, there undoubtedly will be situations where employees decline to return to work for one reason or another. How should an employer respond when an employee refuses to return to work?
Preliminarily, the employer should determine why the employee is refusing to return. Some reasons are—or may be—legally protected; others are not. Employees declining to return to work merely because they prefer to remain on unemployment are not protected, and an employer can require those individuals to return to work or risk losing their job (and potentially forfeit their right to unemployment benefits). Employees who express a fear of contracting coronavirus should be handled more delicately.
Employees with a generalized concern about contracting coronavirus also are not protected. However, individuals may have a reasonable and more specific fear of contracting coronavirus, perhaps because they have an underlying health condition that makes them more susceptible to complications from coronavirus (e.g., compromised immune systems). Or they may have a mental disability that causes a more extreme reaction to the potential risks. In these situations, employers should handle the situation as they would any other request for accommodation under the Americans with Disabilities Act (ADA) and applicable state law, and teleworking or a leave of absence may be a reasonable accommodation. (See Updated EEOC Guidance issued June 11, 2020.)
Federal, state and local law, such as the Families First Coronavirus Response Act (FFCRA), provide protected leave for various purposes, including childcare needs, personal illness or quarantine, and caring for others who have tested positive for coronavirus, among other things, subject to applicable conditions. Some jurisdictions, such as Colorado, create additional protections for “vulnerable individuals” (such as pregnant women and the elderly) or those who reside with vulnerable individuals. And employers should not overlook assessing whether employees may be entitled to leave under the Family and Medical Leave Act, even if not eligible for leave under the FFCRA.
Moreover, employees with reasonable safety concerns—for instance, where they assert that the employer is not taking reasonable steps to provide a safe workplace—also may be protected under the Occupational Safety and Health Act and, if they are acting not just on their own behalf, under the National Labor Relations Act. Failing to act appropriate with respect to such employees may lead to whistleblower complaints, among other things. Collective bargaining agreements should also be taken into account, where applicable.
To avoid some of these issues, employers may elect to seek volunteers to return to work prior to mandating that employees return, to the extent feasible from a business standpoint. Where employees are asked or directed to return to work and refuse to do so, the employer should carefully document the offer or request to return, the terms of the offer or request (e.g., whether it was on the same terms and conditions as prior to coronavirus or, if not, the scheduled hours, the duties to be performed and the compensation offered), the employee’s rejection of the offer, and the reasons proffered by the employee for rejecting the offer. (Employees who refuse to return to significantly modified positions or for other reasons deemed legitimate may still be eligible for unemployment.) This information can be helpful in disputing an unemployment claim, or if the employee later asserts that he or she was wrongfully terminated. In addition, under the Paycheck Protection Program (PPP), employers are required to keep such records in order to take advantage of the applicable exemption for loan forgiveness purposes.
Furthermore, many states’ unemployment commissions are asking or requiring employers to report situations in which individuals refuse to report to work. (And, to take advantage of the applicable PPP exemption, employers must report the refusal to return to work to the state unemployment commission within 30 days.) In some cases, states are asking what the employer has done to ensure a safe work environment for workers. Employers should be cautious in responding to these inquiries, as the information provided can be used against them in litigation and/or can form the basis of legal claims. For instance, a listing of steps taken to ensure worker safety could be used to demonstrate that the employer did not do enough and/or did not comply with governmental guidance. Likewise, while employers should be truthful in their responses, they should not indicate that employees are “lying” or “malingering,” nor should they provide details about employees’ medical conditions, which can also give rise to claims. Instead, employers should use employees’ own statements where possible (e.g., quote an employee’s email about why he/she is refusing to return to work, without disclosing confidential medical or other information). We recommend that employers provide such information in conjunction with legal counsel.
The bottom line is that, where an employee refuses to return to work (whether at the employer’s worksite or at off-site locations, such as customer premises), the employer must inquire as to the reason for the refusal, respond appropriately and properly document the issues.
Information is changing daily and some of the content included in this alert may have changed or been updated since publication.
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