CAN YOUR EMPLOYEES REFUSE TO RETURN TO WORK?
When your business reopens, what can an Employer do when employees refuse to return to work?
First, the Employer should consider whether or not there is COVID-19 in the workplace. If there is, there are many layers of leave policy that come into play when evaluating the Employer’s responses to this event.
Second, when there is no COVID-19 in the workplace, the EEOC has established guidance for Employers covered by the ADA (with 15 or more employees):
“The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." Applying this standard to the current circumstances of the COVID-19 pandemic, Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an Employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”
Third, What if there is no COVID-19 in the work place?
And what if an employee is simply afraid of getting the virus from a customer?
The US Department of Labor published two Q and A that give Employers direction on how to handle its employees:
#1 …. I’m afraid of getting coronavirus from customers coming to the store, so I quit and filed for unemployment. Can I obtain [unemployment] benefits under the CARES Act?
No. Under the CARES Act, you may be eligible for benefits if you meet one of the circumstances listed in the Act, but none include the scenario described. On these facts, you are not eligible for Pandemic Unemployment Assistance (PUA) because you do not meet any of the qualifying circumstances;
#2. …I was furloughed by my Employer, but they have now reopened and asked me to return to my job. Can I remain on unemployment?
No. As a general matter, individuals receiving regular unemployment compensation must act upon any referral to suitable employment and must accept any offer of suitable employment. Barring unusual circumstances, a request that a furloughed employee return to his or her job constitutes an offer of suitable employment the employee must accept. While eligibility for PUA does not turn on whether an individual is actively seeking work, it does require that the individual be unemployed, partially employed, or unable or unavailable to work due to certain circumstances that are a direct result of COVID-19 or the COVID-19 public health emergency. In the situation outlined here, an employee who had been furloughed because his or her Employer has closed the place of employment would potentially be eligible for PUA while the Employer remained closed, assuming the closure was a direct result of the COVID-19 public health emergency and other qualifying conditions are satisfied. However, as soon as the business reopens and the employee is recalled for work, as in the example above, eligibility for PUA would cease unless the individual could identify some other qualifying circumstance outlined in the CARES Act.
Conclusion. The avalanche of new laws governing employment, paid leave and return to work polices needs special guidance by experienced legal practitioners to deal with 100s of new and challenging circumstances.
Zeigler Townley PC has the staff and guidance to assist. Contact firstname.lastname@example.org or 248.643.9530.