Does your organization have a plan for employees who are scared to return to the workplace once COVID-19 restrictions are lifted? Meaning has your organization thought through the steps that you are going to take when an employee who has been working remotely refuses to return to your facility? We already know that if an employee was furloughed or laid off and they refuse to return that they may still be able to collect unemployment benefits. The Biden administration recently stated that laid off individuals who turn down work because of COVID-19 safety concerns may be eligible for unemployment benefits. However, what happens if an employer has an employee who has been working remotely and he or she refuses to return to work due to safety concerns and has no real defined reason related to such? Can the employer discipline or terminate the employee? The answer is not a simple “yes” or “no”. Employers should consider all reasons the employee might refuse to come into work before taking any steps towards discipline or termination.
First of all, the employer needs to ask if the employee has any underlying medical conditions that would make him or her contract COVID-19 more easily or suffer a more serious form of the virus if contracted. It is up to the employer in accordance with the federal Americans with Disabilities Act and its Amendments Act (ADAAA) to conduct an interactive process or conversation with the employee to determine if any reasonable accommodations must be made for the employee, if they return to the workplace. Employers should refer to the Equal Employment Opportunity Commission’s (EEOC’s) Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada for additional information with regards to the interactive process, timing, and results. An employer may not require a qualified individual with a disability to accept an accommodation, however, if an employee needs a reasonable accommodation to perform an essential duty or responsibility of the job in order to eliminate a direct threat, and refuses to accept an effective accommodation, he or she may not be qualified to remain in the job.
The employee may also have great concerns as to whether or not the employer or organization is taking the necessary safety precautions to prevent the spread of the virus in the workplace. In either case, the employer must be cautioned against terminating an employee, as it could give rise to discrimination or retaliation claims. An employer may consider discipline as long as it is not making the missteps described above and isn’t overstepping any accommodation obligations under the ADAAA and state disability-related laws. In addition, an employer may want to consider whether an employee lives with someone who is at high-risk for contracting COVID-19. While the ADAAA does not require reasonable accommodation for employees in these cases, many employers are still trying to accommodate employees in such circumstances.
For many employers their employees simply need to be within their facility to conduct their jobs. However, teleworking is one possible ADAAA accommodation. For some employers, remote work remains feasible and a reasonable accommodation option for some employees. Employees who have a legitimate high-risk medical condition may be offered a leave of absence as an accommodation, if teleworking is not an option. The EEOC has taken the stance that leave because of a disability should be a second-to-last resort with termination as the last resort. Employers should take caution not to offer employees who refuse to come to work a leave of absence that is not covered by employer policy, or any other applicable federal, state, or local laws. Offering a discretionary leave to one employee and not providing another with the same privilege may open up an employer to claims of disparate treatment, especially if the employees belong to different protected classes.
According to the Centers for Disease Control and Prevention (CDC) adults of any age with the following conditions are at increased risk of severe illness from COVID-19:
- Cancer of any type
- Chronic kidney disease
- Chronic Obstructive Pulmonary Disease (COPD)
- Down Syndrome
- Heart conditions, such as heart failure, coronary artery disease or cardiomyopathies
- Immunocompromised states from solid organ transplants or a weakened immune system
- Sickle Cell Disease
- Type 2 Diabetes Mellitus
In a recent interview, Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases stated, “Depending upon the job market and skill set of the workforce, it may be preferable to allow employees to take a leave of absence rather than terminating and trying to replace employees who refuse to come to work – especially where help is on the way – meaning the current vaccine rollout.”
Basically, a request to work remotely, or to take a leave of absence, if deemed necessary by both the employer and employee comes down to whether the employee is eligible for remote work, or leave, based upon traditional disability accommodation laws. Employers who are proactive in making the decision on whether an employee’s refusal to return to their facility will not only have employees who are compliant with returning, but will also limit their potential liabilities in accordance with federal, state, and local laws.
For additional information on what to do if your organization has an employee who refuses to return to the workplace, please contact us at www.newfocushr.com.
Written by: Kristen Deutsch, M.B.A., CCP