Commentary

Return to Work

As employers ask employees who have been furloughed or who have been teleworking to return to the office, they may encounter some resistance.  Here are some of the reasons that workers might give and how employers may respond.

  1. “I am making the same amount in unemployment benefits that I did when I was working.”  If an employee refuses to return to work simply because they do not want to give up their unemployment benefits, tell them that they are probably not eligible for those continued benefits.  Here, employers should document the employee’s refusal to return to work and notify the Employment Commission of the refusal to return.
  2. “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. However, 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 the employee’s care provider is closed for a COVID-19 related reason.
  3. “I am scared to come back to work.” Assume here that we are talking about a healthy person with no known risk factors.  While these employees may not have a legal right to remain on your payroll if they are unwilling to return to work, notify the employee and give him or her at least a week to consider and return.  Explain to the employee what precautions you are taking to protect your employees. If the employee cannot be persuaded to return to work, be respectful to him or her and inform the employee that you will not be able to retain them.
  4. “I am scared to come back to work because I have a significant health issue that could put me at a high risk for severe illness from COVID-19.”  In contrast to the previous example above, if an employee has a health condition or disability (such as diabetes, chronic lung disease, severe asthma, severe obesity, or some condition that might cause the person to be immunocompromised among others), the employer may (and likely does) have an obligation under the Americans with Disabilities Act to consider reasonable accommodations for the employee, including continued teleworking if the employee could perform the essential functions of their job from home. If not, keep the employee temporarily on an unpaid leave for at least 6-8 months.
  5. “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.  Obviously, these employees have legitimate concerns about the threats of work-related COVID-19 exposure to others. 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, employers are probably not obligated to accommodate these employees.
  6. “I am not willing to come back because our workplace is unsafe.”  Two pieces of advice in this case: listen and do not take immediate action. 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 government requirements, and your employee is still making unreasonable demands, you may have to tell the employee that you understand that he or she does not feel comfortable coming back to work. Bear in mind in this case it is not retaliation to terminate an employee who refuses to work.