COVID-19 UPDATE: When Employees Are Afraid to Come to Work

For many businesses now reopening after three months of COVID-19 disruption, both employers and employees are facing new challenges.

These aren’t normal times.

While unemployment regulations vary from state to state, many workers who went on unemployment last March have been collecting a weekly $500 unemployment check — plus $600 more per week federal Pandemic Unemployment Assistance (PUA) through the Cares Act. Some may be bringing in more money now than they were when working.

In normal times, most people would welcome the opportunity to go back to work as soon as they could, but these aren’t normal times. Even with the PUA money running out on July 31, and unemployment ending later this year, some employers are currently managing special requests from employees who are reluctant or unable to return to work.

Be informed, open, and prepared to educate

If an employee is hesitant to return to work, the most important thing to know before you take action is why. The idea is to avoid firing those who are afraid, and instead figure out if the fear can be addressed directly. Employers must be prepared to communicate and educate.

Let your employees know the plan. Share the recommended guidelines coming from the state, the Centers for Disease Control and Prevention (CDC), and other agencies. Communicate and consistently enforce safety standards such as routine cleaning, physical distancing, regular monitoring, and any recommended or required PPE.

But there may be additional circumstances — other than fear — for an employee having difficulty returning to work, and where benefits can be extended for individuals who might not qualify for regular unemployment compensation.

Know the rules

The US Department of Labor is clear that if an employee refuses to go back to work, that means the end of their unemployment benefits — “unless the individual could identify some other qualifying circumstance outlined in the CARES Act.” These eligibility criteria are explained in the Unemployment Insurance Program Letter 16-20, and include workers who are sick themselves or are caring for someone who is sick, employees caring for a child whose school has been closed or whose childcare provider is unavailable due to COVID-19 precautions, and those advised by a healthcare provider to self-quarantine due to exposure to COVID-19.

Also, don’t forget that the Families First Coronavirus Response Act (FFCRA) passed by Congress on March 18, 2020, provides paid sick leave for employees who are infected or who are caring for a family member with COVID-19.

However, individuals who quit their jobs to access higher benefits— and are untruthful in their application about their reason for quitting —are committing fraud. Employers can contest unemployment insurance claims through their state unemployment insurance agency’s process.

Making special accommodations

Some employees may be hesitant to return to work because they are in a high-risk category for contracting the virus themselves. Employers should be prepared for the ADA implications of this situation, and make reasonable accommodations, if possible. Under the Americans with Disabilities Act (ADA), employers cannot discriminate against any “qualified individuals with a known disability” regarding job applications, hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment.”

The Centers for Disease Control and Prevention (CDC) has identified high-risk individuals to include: people over the age of 65, people with chronic lung disease or moderate to severe asthma, serious heart conditions, people with compromised immune systems, severe obesity, diabetes, chronic kidney disease undergoing dialysis, and liver disease.

However, after special considerations are made and options discussed, if an employee continues to refuse to work, the refusal to work (or to perform certain work) could be considered job abandonment. This is usually documented as a voluntary resignation. In some cases, under emergency unemployment rules the employee may be eligible for unemployment benefits, but this does not necessarily mean job protection.

OSHA and workplace safety

OSHA has created nonbinding guidelines for employers to follow and issued an interim enforcement plan. The agency also issued instructions to regional and state offices — soon after the enforcement plan was announced — that instructed inspectors to use their judgment in determining whether employers are making a “good faith effort” to keep their workplaces safe during the pandemic.

What if an employee thinks the workplace is inherently dangerous? An individual could theoretically say that the workplace is generally unsafe due to the outbreak, but that would be hard to prove unless the employer was not providing any protective equipment, or was asking an employee to do something that is blatantly unsafe.

The Department of Labor is telling workers to report employers if their response to the possible spread of the coronavirus “creates a serious safety hazard.” Since the beginning of the pandemic, OSHA has received 4,268 COVID-19 safety and health complaints and 1,328 COVID-19 whistleblower complaints. OSHA’s Principal, Assistant Secretary Loren E. Sweatt, said when testifying before the House Education and Labor Committee’s Workforce Protections Subcommittee on May 27, that OSHA has closed 3,000 cases and issued its first COVID-19 citation to a nursing home in Georgia for failing to report several hospitalizations.

One key piece of new information was Sweatt’s plan to ramp-up COVID -19 enforcement and to increase in-person inspections now that businesses are beginning to reopen.

Feel free to contact me if you have questions about an employee that is refusing to work, or if you have any other questions concerning your business reopening and OSHA compliance.

About the Author: James Laboe

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