Considerations When an Employee Refuses to Return to Work During the COVID-19 Pandemic
As local businesses have begun expanding and reopening their operations, a unique issue has emerged—some employees are refusing to return to work, often out of concerns related to COVID-19. The following considerations, though not necessarily exhaustive, should be made if any of your employees are refusing to return to work as you begin to expand or restart your operations.
1. Effectively communicate your organization’s COVID-19 risk mitigation plan.
This communication may include topics such as:
How you are implementing social distancing (e.g. staggered shifts, changed clock-in protocols, reconfiguration of your office space).
Whether and when teleworking is allowed and/or business travel is required.
Any standards you have set concerning hygiene expectations.
Any increased sanitation at your worksite.
Any screening protocols you have implemented (e.g. temperature checks) and your requirements for self-reporting of COVID-19 symptoms and diagnosis.
Any additional engineering controls, administrative controls, and/or PPE that have been introduced in response to the virus (e.g. face mask/glove requirements, installation of physical barriers, increased ventilation rates, decreased coworker/customer contact).
The situations covered by Emergency Paid Sick Leave/Expanded FMLA and how such leave can be requested, if applicable.
How members of vulnerable populations can request accommodations.
Your ongoing monitoring of the situation and commitment to respond to developments in the interest of everyone’s safety.
2. Determine whether the employee’s refusal to work is protected by any leave laws.
In addition to other federal, state and local leave laws, you should determine whether the employee’s refusal is protected by Emergency Paid Sick Leave/Expanded FMLA (the new federal leave laws, which were enacted in response to the COVID-19 pandemic). These new leave laws generally apply if your organization has fewer than 500 employees and the employee:
Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
Is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;
Is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or directed by a health care provider to self-quarantine due to concerns related to COVID-19; and/or
Is caring for their Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19.
3. Determine whether the employee’s refusal to work is protected by the ADA.
Having a relevant, covered disability requires the employer to engage in an interactive process. During this process, employers should advise employees of the precautions taken by the employer at minimizing exposure risks to COVID-19 as well as work with the employee to determine whether a reasonable accommodation (such as telecommuting, reassignment, or a leave of absence) is available. A disability that might be implicated in this situation may include one that is tied to increased complications from infection or an anxiety disorder that is triggered by fear of infection.
4. Determine whether the employee’s refusal to work is protected by OSHA.
Per OSHA guidance, Employees have a right to refuse dangerous work and are entitled to refuse to work if all of the following conditions are met:
Where possible, the employee has asked their employer to eliminate the danger, and the employer failed to do so; and
The employee refused to work in “good faith” (i.e. the employee genuinely believes that an imminent danger exists); and
A reasonable person would agree that there is a real danger of death or serious injury; and
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.
OSHA will likely consider the good faith efforts your office has taken to help prevent the introduction and spread of COVID-19 at your worksite. The mitigation steps you have taken should help demonstrate that your employee’s refusal to return to work is unreasonable and not legally protected.
5. Consider whether you should report the refusal to your state workforce agency.
The federal government and some states have been extending benefits to individuals who would otherwise have been disqualified from receiving unemployment. For example, in Texas, guidance from the Texas Workforce Commission (TWC) states that individuals who refuse suitable work may continue to be eligible to receive unemployment benefits under certain conditions related to COVID-19. Acceptable reasons for refusal to return to work include:
When the individual or a household member has been diagnosed with COVID-19 or is at a higher risk for getting sick from COVID-19 due to age or a medical condition;
When the individual has been quarantined due to close contact exposure to COVID-19; and
When the individual has covered childcare issues.
TWC has released a form to allow employers to report when employees have refused to return to work; information provided on the form may be used by TWC to disqualify individuals from receiving unemployment benefits. TWC encourages but does not require employers to complete the form. However, per recent federal guidance, an employer seeking loan forgiveness under the Paycheck Protection Program may be required to report such refusal to their state unemployment office within 30 days in order to maximize the amount of their loan forgiveness.
Remember the Big Picture
As you determine how to move forward with an employee that is refusing to return to work, keep in mind that compassion, fairness, and honest communication will strengthen the relationship you have with your employees, which is key to the continued success of your organization.
This update is for informational purposes only and does not provide legal advice. Every legal situation is different and must be independently analyzed by an attorney. Please consult with an attorney for specific guidance.
About Luna Law, PLLC
Luna Law, PLLC, provides a wide array of legal services to help small businesses and creative professionals succeed. Services include the creation of corporate entities; contract preparation, review, and negotiation; assistance with employment issues; preparation of company policies and procedures; and guidance to mitigate risk and ensure compliance with local, state, and federal regulations. Contact the firm for a consultation or visit RachelLunaLaw.com for more information.