Hey Compliance Warriors!
There’s plenty of people out there who are still rather panicked about the COVID-19 crisis, and rightfully so. But it can make reopening our businesses rather challenging when people don’t want to come back in. For guidance on encouraging your workforce, Read on…
Article Via: www.icemiller.com
“Many employers are working on bringing their employees back into the workplace. Some employees, however, are not looking forward to returning. The reasons vary from a fear of the virus, kids who are still at home, or a desire to collect unemployment. Employers need to consider the employee’s reason for refusing to return before responding.
Managing Fear
The fear of contracting COVID-19 remains a common reason for employees not wanting to return to the workplace. The fear could be personal—i.e., I do not want to catch the virus—or protective—e.g., I do not want to bring the virus home to my family member who is vulnerable to serious complications from the virus. Whatever reason the employee has to be afraid, for most employees, the fear is real.
An employer’s first approach to managing the fear is communication about the precautions being taken to make the workplace as safe as possible. This communication should begin long before asking employees to return to the workplace. If employees trust that their employer has taken reasonable steps to make the workplace safe, it will be easier for them to return. When the employee says he or she is afraid, you can reiterate the steps you have taken and help reduce his or her concern.
Depending on the basis for the fear, the employee could also be entitled to Emergency Paid Sick Leave (“EPSL”) under the Families First Coronavirus Response Act, which private employers with less than 500 employees and all public employers must provide. For example, an employee could be caring for an individual who has been advised by his or her health care provider to self-quarantine. If so, the employee would be entitled to up to 80 hours of EPSL (assuming the employee has not used EPSL already). The required pay for this form of leave is 2/3, capped at $200 per day. Remember, the paid leaves under the FFCRA are in effect through the end of the year.
It is also possible the fear is related to an underlying disability. If the employee references a medical condition, the employer should engage in an interactive process with the employee. The interactive process, which, in most cases, includes requesting information from the employee’s medical provider about the effects of the condition, any restrictions the employee has and any employer assistance needed, will ultimately lead toward a determination about whether the employee has a disability and whether reasonable accommodations can be provided to allow the employee to work without placing an undue hardship on the employer.
If an employer is unable to assure the employee the workplace is reasonably safe, and the reason for the fear does not qualify for a leave or accommodation, the employer needs to decide its next steps. Employers can allow the employee to work from home (if possible), place the employee on unpaid leave (with or without holding the employee’s position) or tell the employee that, if he or she is unable to return, the employment relationship is at an end. In making this choice, employers should remember two things: consistency and compassion. Both are important in the decision and can lead to contradictory results. While COVID-19 is serious, there are many other similarly serious viruses. Employers should consider how their decisions now will impact their response to such situations in the future.
Kids at Home
You may be thinking: “Schools out for summer! It is normal for kids to be home.” This may be true for some, particularly families with older kids. However, both EPSL and Expanded Family and Medical Leave (“EFML”) are available when the employee is unable to work because the child’s school or place of care is closed or unavailable. A “place of care” is “a physical location in which care is provided for the Employee’s child while the Employee works for the Employer. . . . Examples include . . . homes, summer camps, summer enrichment programs, and respite care programs.” If the employee usually sends his or her child(ren) to summer camps while working, and those camps are not available, the employee may take up to 80 hours of paid EPSL and 12 weeks of EFML, with the first two weeks of EFML being unpaid. The required pay for these leaves is 2/3, capped at $200 per day.
Unemployment
The somewhat “rich” unemployment system—at least through July—has left some employees with the belief they have a better financial option than working. This belief is generally incorrect. If an employer has work for the employee and the employee refuses without a good reason, the employee will not be entitled to unemployment. Fear of contracting the virus is not enough.
Regardless of the reason for the refusal to return, employers need to consider appropriate steps for managing that refusal. Employers should not assume they have the right to demand a return to the workplace in all cases. Conversely, employers are not hamstringed by an employee’s refusal. Think through the options and, when in doubt, seek the assistance of counsel.
If you need any assistance with returning employees to the work place, please contact Tami Earnhart or any other member of Ice Miller’s Labor, Employment & Immigration Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.”
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