“But I Don’t Want to Come Back to the Office!”
As employers ask employees who have been furloughed or who have been teleworking to return to the office, they may encounter some resistance from some workers who don’t want to come back. Here are some of the reasons that workers might give and how employers may consider responding to them:
“I am making the same amount in unemployment benefits that I did when I was working.” As we discussed several weeks ago, thanks to the weekly $600 federal supplement that many employees are now receiving (and could continue to receive through July 31, 2020), many employees who earned less than $50,000.00 a year are doing pretty well on unemployment. But if an employee refuses to return to work simply because they don’t want to give up their benefits, then they are probably not eligible for those continued benefits. Here, employers should document the employee’s refusal to return to work and notify their state workforce agency.
“I cannot return to work because my child’s school or day care center is closed.” If you employ fewer than 500 employees, these employees could still be eligible for two weeks of leave under the Emergency Paid Sick Leave Act and an additional ten weeks at two-thirds their regular pay under the Emergency Federal Medical Leave Expansion Act. This entitlement does not extend to situations where schools are closed for the regular summer vacation, although an employee may be able to take leave if his or her child’s care provider during the summer — a camp or other program in which the employee’s child is enrolled — is closed or unavailable for a COVID-19 related reason.
“I am scared to come back to work.” Let’s assume that we are talking about a healthy young employee who lives by himself with no known risk factors. Nevertheless, they have read enough about COVID-19 to know that even young, healthy people can get very sick if they are infected. While these employees may not have a legal right to remain on your payroll if they are unwilling to return to work, employers should handle these situations carefully. Explain to the employee what precautions you are taking to protect your employees. Ask the employee if there might be additional, reasonable precautions that would make him feel more comfortable returning to work (for example, while not necessarily legally required to do so, the employer may consider — if practicable — allowing the worker to continue teleworking until the number of new infections has dropped below a certain threshold). If teleworking is not workable and the employee cannot be persuaded to return to work, be respectful of his choice even if you have to inform him that you will not be able to guarantee him that his position will be available if he asks to return at a later date.
“I am scared to come back to work because I have health issues that could put me at a high risk for severe illness from COVID-19.” In contrast to the previous example, if an employee has a health condition or disability (diabetes, chronic lung disease, severe asthma, severe obesity, or some condition that might cause the person to be immunocompromised, to name a few), the employer may have an obligation under the Americans with Disabilities Act to consider potential reasonable accommodations for the employee, including teleworking if the employee could perform the essential functions of their job from home. Even if the employer cannot reasonably accommodate the employee, they should still think twice before terminating the employee and they should document the steps they have taken to consider the alternatives. Keeping an employee temporarily on an unpaid leave with their health benefits may be the safest course of action in some instances.
“I am scared to come back to work because my elderly mother (or spouse with a compromised immune system) lives with me.” This is a tough one, and one that many frontline health care providers have already faced. Obviously, these employees have legitimate concerns about the threats posed by potential work-related COVID-19 exposure. And yet, unless the elderly mother or other vulnerable family member has a serious medical condition that requires the employee to stay home with them, in which case the employee may have a legal right to leave under the federal Family Medical Leave Act or one of the state family medical leave laws, employers are probably not obligated to accommodate these employees. Nevertheless, employers may choose to temporarily accommodate these employees by allowing them to continue teleworking or to take an unpaid leave for additional time with the hope that the pandemic subsides soon.
“I am not willing to come back because our workplace is unsafe and you have not done enough to keep employees protected.” Even though your company may have developed a comprehensive return-to-work plan that includes employee screenings, rearranged work stations, face mask requirements, staggered work schedules, and so on, some employees may still challenge the adequacy of your protective measures. Two pieces of advice here: “Listen” and “Don’t retaliate because safety-related concerns have been raised.” The best safety programs are those that encourage employees to be involved in the safety process. If an employee expresses concerns, solicit the employee’s feedback, and if his suggestions are reasonable and make sense, incorporate them. At the end of the day, however, if you have followed the most current guidance of OSHA, the CDC and your local governments, as well as the standard of care followed by the best companies in your industry, and your employee is making unreasonable requests that far exceed those standards, you may just have to diplomatically tell the employee that you understand that he or she does not feel comfortable coming back to work. Bear in mind that it’s not necessarily retaliation to terminate an employee who refuses to work, but you will need to be able to show that you evaluated the employee’s concerns, and that the expressed concerns about safety were not a factor in your decision.
Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.