COVID-19 Next Steps: If Workers Refuse to Return
COVID-19 May be an Uncomfortable Spot for Workers
As we near a re-opening phase of the Coronavirus crisis, many workers are leery about stepping back into the workforce. Some essential workers are even refusing to come to work out of fear of contracting the coronavirus. It’s important for employers to think about the employees’ legal rights and health concerns as well as trying to meet the organizations’ business needs.
Start with a conversation with the employee. As a general rule, communication is the key to a strong employer / employee relationship. Therefore, if a worker is hesitant to come back to work, it is important that the employer speak with them to determine the basis of their fears. This allows the employer to understand the issue. Then, they can mutually work with the employee through their concerns together. This simple act can mitigate any escalation of the issue.
Your Employee has Rights!
Remember before you react abruptly that your employee has rights. Think about the legal ramifications of your actions. Ask yourself if putting a nervous employee on leave may be a better choice than firing them.
As you go through the decision of how to address an employee that will not come to work, you should also consider any time-off policies you currently have and how they interact with an employee on unpaid leave. These time-off policies could include vacation or Paid Time Off.
Laws in Place to Protect your Employee That Must be Considered
Employers should accommodate employees who request altered worksite arrangements, remote work, or time off from work due to underlying medical conditions that may put them at greater risk from COVID-19.
The EEOC’s guidance on COVID-19 and the Americans with Disabilities Act (ADA) points out that accommodations may suggest changes to the work environment to reduce contact with others. This may include accommodations such as using Plexiglas separators or other barriers between workstations.
It’s likely that the employee is covered by OSHA if they believe that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time. OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. OSHA addresses these concerns as they relate directly to Coronavirus and it’s a good idea for employers to get to know this information.
The National Labor Relations Act (NLRA) grants employees at unionized and nonunionized employers the right to join together to engage in protected concerted activity. Employees who assert such rights, including by joining together to refuse to work in unsafe conditions, are generally protected from discipline.
So what if a health care provider advises an employee to self-quarantine because of COVID-19? The Families First Coronavirus Response Act (FFCRA), states the employee may be eligible for paid sick leave. The FFCRA applies to employers with fewer than 500 employees, and the quarantine must prevent the employee from working or teleworking.
FFCRA regulations permit employers to require documentation for paid sick leave.
Keep in mind laws such as the Workers Adjustment and Retraining Notification Act (WARN). The WARN act requires employers with 100 or more full-time employees as defined by the Act to provide at least 60 calendar days advanced written notice of a plant closing or mass layoff affecting 50 or more employees at a single site of employment.
The act extensively defines “plant closing” and “mass layoff”. It also has specific provisions requiring notices to employees, unions and certain government entities.
Inform and Protect Workers
All employers should keep employees apprised of ways in which the employer is taking action to maintain a safe workplace. Information from the U.S. Centers for Disease Control and Prevention (CDC) should be made available, for example posting infographics such as these can provide quick reference for employees. OSHA information and local law and regulations should also be posted or made available and updates should be communicated as the situation changes.
We suggest to discuss your particular situation with your attorney if you are not sure how to mitigate potential penalties.
For more information regarding Hiring Procedures and help or HR policies during the COVID-19 crisis, COVID-19 support and information or other HR needs, contact MyHRConcierge at 1-855-538-6947 x.108 or email firstname.lastname@example.org.