Human Resources

This is a tricky topic. There are so many pieces to consider. If you require only this one worker to come back into the office be sure you can prove this is a performance issue that no other employee is facing. If you can prove this, then refusing to come back in can only be valid under very few circumstances. The key is making sure the issues in play are very specific to this worker who will eventually come to feel he is being singled out.

I cannot provide legal advice and I know employers don’t want to lose anyone, but you must balance that with the requirement for people to perform and be of value to the company unless there is a covered reason not to work. In reality, you may have to lose and hopefully replace someone. However, the lawsuits and DOL actions are already beginning to pour in. So, establishing good faith and reasonable basis have never been more important.

Let’s unpack this a bit.

Employees are allowed to refuse work under certain conditions. https://www.osha.gov/right-to-refuse.html  Cal/OSHA upholds the same rights.

Your right to refuse to do a task is protected if all of the following conditions are met:

• Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
• You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists; and
• A reasonable person would agree that there is a real danger of death or serious injury; and    **KEY**
• There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

• Ask your employer to correct the hazard, or to assign other work;
• Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
• Remain at the worksite until ordered to leave by your employer.

Once these steps have been followed, the EE cannot be terminated.

There could also be ADA issues if the refusal relates to a covered disability. Each employee must be reviewed individually. Document your steps as you determine whether a disability exists – mental or physical – and then use the interactive process as applicable. The EEOC says you do not have to accommodate the fear of getting and giving COVID-19 to a family member. If he is personally high-risk, then we have a different story. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D.1

https://askjan.org/disabilities/Mental-Health-Impairments.cfm

https://askjan.org/topics/interactive.cfm

Finally, you must consider that if the employee returns, there may be a question of FFCRA leave for covered reasons. https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

So, all of that will need to be unpacked and reviewed so you will not be found in violation of the FFCRA.

Outside of this, employees who refuse to perform work that is productive and valuable are possibly resigning or abandoning the job. This is why we recommend you issue a letter where the EE can decline employment. We have a sample on the COVID-19 page of our site. https://helpdesksuites.com/coronavirus-covid-19-resource-center/

As always, you may want to speak with local legal counsel to be sure you are not missing any specific details regarding your particular case.

So, now let’s say all of this is in place and there are no protections. He just doesn’t want to come into the office. We will assume the office is safe and you have put several procedures in place to be sure there is little risk of exposure to COVID-19. Everyone is 6 feet apart, masks, gloves, cleaners, soap, water, sanitizer, and a higher level cleaning schedule for the workplace are some of these precautions. https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html  When you have documented all efforts and his negative response, ask him if his refusal to work in the office is then a resignation? He will say no and you will tell him the only option is coming into work and again reassure him that you are taking high-level measures to keep everyone safe.

Ultimately, you may end up with a termination, but when he applies for UI, you will have the opportunity to tell the real story of why he left.

Tags: FFCRA  Refusal to work  Afraid to work