Monday, May 11, 2020

What Do You Mean You Don’t Want to Come Back to Work?

Let’s imagine a time when workplaces reopen. Or let’s just imagine that your workplace is open now and you’re doing your best to protect the health and safety of employees with masks and plenty of hand sanitizer and social distancing when feasible. Nevertheless, you still have employees who are leery of being at work for fear of coronavirus exposure. Many employers ask how accommodating they should be of these fears and when it might be that some employees are being a bit unreasonable. Mostly, employers ask how to handle these situations.

Generally, employees who are fearful to return to work fall into two categories, those with well-founded concerns and those with what might be identified as having a more generalized fear of virus exposure. The first might include an employee who is in or lives with someone, in one or more of the high-risk categories relative to contracting or recovering from the virus. The second is the employee who is not at or living with anyone particularly at risk, but still has an overall fear of exposure. The trick is how to address these concerns in a sensitive and fair fashion.

While the easier situation is the first one, both require the following steps:
  • Understand the basis for their concerns. Essentially, learn whether they or someone with whom they live falls into a high-risk category.
  • Analyze their job duties. The answer to how to address their concerns about being in the workplace depends a lot on the nature of their job. A healthcare worker who is at high risk of exposure is different than an office worker who rarely if ever has contact with the general public. This analysis includes reviewing how they commute to work and the general workplace.
  • Discuss with them the safety measures that exist in the workplace already.
  • Like the interactive process under the ADA, try to identify what might address their safety concerns which you could reasonably make available.
  • Those in high-risk jobs who have vulnerable household members can be required to submit a note from their or their family member’s physician verifying advice that the individual must stay home because of unacceptably high risk to others. This may trigger entitlement to EPSLA under the FFCRA or otherwise use of their own benefit time.
  • Those who are not in high-risk jobs, if operational needs allow, can use benefit time in lieu of reporting to work. Before agreeing to this option, think long term if many employees make the same request and what happens when their benefit time is exhausted.
  • Those who are not in high-risk jobs and do not have vulnerable household members also can be directed to report. Failure to do so is insubordination and can result in disciplinary action.

Given that each employee may present with a different job or household circumstance, it is important to evaluate each situation on its own merits, but it is also important to treat similar situations in the same or similar fashion to avoid claims of discrimination.