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Last updated on June 9th, 2020 at 11:15 am

Ms. Devora Linderman, Esq.
Labor and Employment Partner at Greenwald Doherty, LLP

We are honored to present this guest post written by employment attorney, Devora Lindeman of Greenwald Doherty, LLP It discusses a number of timely issues and we hope you enjoy it! – The Editors

So, your business is getting ready to reopen. You are figuring out what health and safety guidelines to implement, ensuring you have sufficient PPE, getting patients or clients scheduled, and otherwise preparing to deliver.  You reach out to your employees to schedule them to return and, instead of enthusiasm about being able to be productive again, you are faced with multiple versions of “Gee, I’d really like to return, but I can’t because . . . .”  What is an employer to do?

Depending on the location(s) of your business, the number of employees you have (both total, and in each location), and other factors, different federal, state and local employment laws may govern an employer’s legal obligations.  Below I will discuss how some of the federal laws are going to apply to most businesses in the U.S., but keep in mind that other laws could also govern your decisions.  This article is not legal advice, but rather only general information and an overview of suggested best practices.  It is always prudent to consult with employment counsel familiar with the law applicable to the location(s) of your business regarding any specific employee situations.

Please also be mindful that employer obligations in this COVID-19 era are constantly changing. Therefore, the legal issues discussed here are subject to change.

Here are some of the main reasons employees may give for not returning to work:

  1. I have kids at home and no childcare.
  2. I am in the “high risk” category and have concerns.
  3. I live with someone in the “high risk” category and don’t want to get them sick.
  4. I am just scared to return.
  5. I am making more money on unemployment so, no thank you.

Before looking at how to potentially deal with each situation, let’s look at some general employment law and other obligations employers may have so you have some information to think with.

Disability Discrimination Avoidance/Providing Reasonable Accommodations: Under federal and local disability discrimination laws, employers are prohibited from making employment decisions because of an employee’s disability, as long as the employee could otherwise perform the job “with or without reasonable accommodations.”  A “reasonable accommodation” is something that helps the employee do their job.  For example, providing a phone with enhanced volume for someone hard of hearing; providing an ergonomic keyboard or desk chair; or potentially providing leave to get better and come back.  It is something that is “reasonable,” and does not create an undue hardship for the business.

Employees need not say any “magic words” to request a reasonable accommodation.  However, once an employer knows that an employee has a medical condition/disability interfering with their ability to do their job, there is an obligation to enter into an “interactive process” (that’s a conversation/exchange of information) to see what, if anything, can be provided. If you are not familiar with how to do this, it is generally prudent to get legal advice.  An employment lawyer can guide you through the process to endeavor to protect against a disability discrimination lawsuit alleging a failure to accommodate.

EEOC Reasonable Accommodation Guidance:  The EEOC (Equal Employment Opportunity Commission) which enforces the the federal ADA (Americans with Disabilities Act), has issued COVID-19-related guidance providing that certain categories of employees at higher risk of serious COVID-19 illness—as determined by the CDC—are entitled to request reasonable accommodations when they are concerned about coming back to work. The CDC currently identifies the following “higher risk” individuals:

  • Individuals 65 years and older; and
  • Individuals of all ages with underlying medical conditions, particularly if not well-controlled, including:
  • chronic lung disease or moderate to severe asthma;
  • serious heart conditions;
  • immunocompromised;
  • severe obesity (body mass index [BMI] of 40 or higher);
  • diabetes;
  • chronic kidney disease undergoing dialysis; and
  • liver disease.

Keep in mind that not everyone who falls into these categories is going to refuse an offer to return to work.  Treat everyone the same until an employee brings up his or her own concerns.  Then, engage in the interactive process discussed above, to see if an accommodation can be provided.

Unemployment Insurance: Unemployment is supposed to be a minimal safety net to provide employees with some compensation between jobs when a position is lost through no fault of their own (i.e., if they did not quit or engage in gross misconduct such as violence or theft). Employees usually receive only a percentage of their overall compensation, as the state does not want to carry the employee indefinitely. The decreased income is meant to incentivize employees to find a job and go back to work.  During the COVID-19 pandemic, however, government unemployment subsidies now allow some employees to get more income from unemployment than they would if working.  Employees who have been laid off (lost their jobs), or furloughed (not terminated but currently not working because their workplace is shuttered or there is no work for them), or who have had their work week shortened (depending on the state) will probably be eligible for unemployment benefits—until they are offered the ability to return to work.  Refusing to work without a good reason (more on that, below) usually means the individual will be denied unemployment benefits.  State law varies, but it is generally considered a voluntary quit for which unemployment insurance benefits are not payable.  As a practical matter, state unemployment offices are so overwhelmed that claims are not being scrutinized closely and even those who quit may be getting paid—but eventually, it is likely that they will catch up with employees who took compensation when they should not have.  For that reason, proper documentation of employee status is important.

Families First Coronavirus Response Act (“FFCRA”):  The FFCRA created certain mandatory leave that many businesses with less than 500 employees must provide.

  1. Emergency Paid Sick leave (for all employees) – up to 80 hours (two weeks) of job-protected leave paid for the hours an employee would have worked in the two weeks (and following a complicated formula if the employee’s schedule varies) when the employee can not work because, among other things: (1) the employee has COVID-19, or is ordered to quarantine/isolate; (2) the employee has to care for an individual with COVID-19 or who is under a quarantine or isolation order; or (3) the employee’s child’s school or day-care is closed or childcare provider is unavailable for COVID-19 related reasons.  Leave for reason 1 is at full pay and leave for reasons 2 and 3 are at 2/3 pay; AND
  2. Expanded FMLA (Family and Medical Leave Act) leave (for employees who have been employed at least 30 days) – up to 12 weeks of job-protected leave if the employee’s child’s school or day-care is closed or childcare provider is unavailable for COVID-19 related reasons. The first 2 weeks are unpaid, unless the employee has available Emergency Paid Sick Leave or other paid time off; the remaining up to 10 weeks are paid at 2/3 pay.  Employees must attest that there is no other suitable caregiver and explain why care is needed if child is over age 14.

Note that “job-protected” means that the employee must be returned to their job at the end of this leave, and should not be fired for refusing to return to work when eligible for this leave.   “Health Care Providers” (including doctor’s offices) may exclude their employees from eligibility for all types of FFCRA leave.  Business with under 50 employees may exclude employees from the “no school/childcare” leave after analyzing the potential harm to the business by providing leave in each case.  If leave is provided, and certain documentation obtained, there is a dollar-for-dollar tax credit available against federal employment taxes for the compensation paid for FFCRA leaves and certain related expenses.

Be mindful that states may have passed local emergency paid sick leave laws without exemptions that may require the provision of other COVID-19-related required leaves.  Your goal is to avoid employee claims asserting a failure to provide leave for which the employee was eligible.

Paid Family Leave:  States that mandate paid family leave insurance (such as NY, NJ, and CA), may allow this family leave to be taken in COVID-19-related situations and/or have modified their laws to cover it.

Payroll Protection Program (“PPP”):  Businesses receiving PPP loans are supposed to maintain employee headcount to obtain loan forgiveness.  However, if a laid off or furloughed employee is offered work, refuses to return, and that communication is properly documented, that employee’s failure to return (and the resulting decrease in headcount), should not count against the PPP.  Also, the employee can be replaced because maintaining “headcount” does not mean keeping the same employees on payroll.

Other considerations:  In addition to legal situations, there may be other factors to consider.  For example, how you treat your employees will be remembered not just by the employee who does not want to return, but by the rest of your team.  You might want to consider the PR issues both internally and externally.  How would a social media post look:  “Dr. Frankenstein fired me just because I have kids!!!”  You also obviously want to have a sufficient team to reopen, but there may be ways to hire replacements so you can function without terminating the employment of those who cannot yet come back.

There may also be factors regarding an employees’ performance, attitude and productivity.   Do you want a particular employee to come back or not?  In certain situations, you can treat employees differently and factor this concern into the equation.  However, be mindful that any such distinctions do not give the impression of being made for a discriminatory reason, or an employee could bring a discrimination suit. Having documentation outlining the reason all employment actions are taken is prudent.

When considering what to do when employees refuse to return to work, taking things one step at a time is better than jumping to hurried conclusions you cannot undo.

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With that background, let’s now look at some general guidance regarding how it might be prudent to respond to employees who do not want to come back to work.  This information below presumes that your employees are employed at will and are not members of a union.  In the latter case – call a lawyer.  But, even outside the union context, multiple legal obligations can be implicated in each of these situations.  The following scenarios presume that (1) the employee has not been working; (2) the employee has been collecting unemployment; (3) work has been offered; and (4) the employee refused to return to work for one of the reasons noted:

  1. I have kids at home and no childcare.

If your business is covered by the FFCRA, or other applicable local law, by giving this reason for not being able to return to work, the employee just went from “not working because there was no work,” to “not working because of no childcare.”  In other words – presuming the no-childcare is because of a COVID-19-covered reason, the employee may just have become eligible for applicable job-protected paid leave.  If the employee is offered this paid leave, however, he or she could potentially refuse it because it unemployment compensation was more than was being offered for the paid leave. This refusal to return to work could technically be taken as a resignation for which the employee would not be eligible for unemployment.  (Referring to my earlier discussion of how unemployment benefits may be denied if the employee refuses work “without good reason.”)  Having no childcare, in this COVID-19 era, would probably be considered a good reason to refuse work, and unemployment benefits would probably continue.  If the employee is not eligible for FFCRA or other paid leave, he or she is still refusing work for a likely “good reason.”

That being said, an employer’s options are: (1) offer mandatory paid leave (if required), and tell the employee to contact you if/when they can return to work as their job will likely need to be held; (2) keep the employee furloughed/laid off and collecting unemployment, but fill the position so you can run the business, and tell the employee to contact you if/when they can return to work; or (3) fire the employee for refusing to return, report the refusal to unemployment (and hire a replacement).  Consider the issues and implications of each option, particularly where terminating employment is a consideration.  Be sure you have the offer and employee’s rejection with the reason in writing, as well as the business’s response.  Document this business decision in an internal memo.

  1. I am in the “high risk” category and have concerns.

By stating he or she cannot return because the employee is “high risk,” this employee just asked for a reasonable accommodation.  In this case, you need to engage in the interactive process to see what the concerns are and whether they can be addressed.  For example, can this job be done from home?  If the employee has been working effectively from home, the business will be hard-pressed to say it cannot continue to allow it.  If the employee has not been working, the employer should consider whether there is anything that can be done to allay the employee’s concerns?  For example, the business could provide additional PPE; move the employee’s workspace further away from others; move the employee to a back-lines position they are qualified for; change starting hours so the employee is not commuting on a rush-hour subway; etc.  Ensure the employee is aware of the safety protocols you are putting in place.  See if there’s something that would make the employee comfortable returning to work and if you can do that.  It may come down to providing leave as an accommodation.  Document everything you considered, everything the employee requested, and write down why the business refused employee suggestions and which business suggestions were refused by the employee.  If you cannot come to an agreement, an employer’s options are to (1) leave the employee on unemployment and fill the position in the meanwhile or (2) let the employee go because no accommodation can be provided.  Consult with counsel in this case before letting an employee go who might claim they were wrongfully terminated.

  1. I live with someone in the “high risk” category and don’t want to get them sick.

Unlike the prior question, an employer usually has no obligation to provide a reasonable accommodation to someone who is not, themselves, disabled, but has concerns about someone who is.  That said, it likely would be prudent to engage in the same interactive process anyway and see if there is anything that can be done to provide the employee with some comfort and ability to return to work.  If not, (1) leave the employee on unemployment and fill the position in the meanwhile or (2) let the employee go because they refused to return.  Be sure to document the offer of work and the employee’s refusal to return.

  1. I am just scared to return.

In this case, it likely would be prudent to talk to the employee and find out why they are scared.  Can the situation be addressed?  Can you allay their fears?  Make sure they know all the safety procedures being put in place.  Make sure there is no underlying unmentioned health condition.  If they still refuse to return, (1) leave the employee on unemployment and fill the position in the meanwhile or (2) let the employee go because they refused to return, and report the offer of work and refusal to Unemployment.  Have documentation of the offer and the employee’s refusal to return.

  1. I am making more money on unemployment so, no thank you.

This is a clear case of refusing available work for no good reason.  Document the offer of work and the employee’s rejection.  Accept the employee’s resignation, and document in a letter or email to the employee that such action is being taken.  Report the employee’s resignation to Unemployment, with the understanding that the agency likely will take no action for some time, if ever.

Each of these situations raises a number of legal questions and concerns.    The above guidance outlined a number of potential landmines where employers should tread carefully as they navigate the return-to-work landscape.  Consulting with employment counsel familiar with the law applicable to the area(s) where your business is located is generally the safest course of action.

Ms. Lindeman can be reached via email at DL@greenwaldllp.com. For more information about Greenwald Doherty, LLP, please visit, https://greenwaldllp.com/

The foregoing is a summary of the laws discussed above for the purpose of providing a general overview of these laws.  These materials are not meant, nor should they be construed, to provide information that is specific to any law(s).  You should be aware that these laws are changing rapidly.  The above is not legal advice and you should consult with counsel concerning the applicability of any law to your particular company or situation. © MMXX Greenwald Doherty LLP All rights reserved.  May not be reprinted without permission.


Devora Lindeman has many years of experience in management-side labor and employment law. Her practice is focused on advising both for-profit and non-profit clients on day-to-day employment challenges that arise when businesses have employees, such as discrimination and harassment complaints, accommodations to individuals with disabilities or who are pregnant, compliance with employee leave laws, wage and hour issues, and issues related to recruiting and hiring, performance management and discipline, terminations and layoffs. Ms. Lindeman reviews and drafts employee policies and handbooks, and assists employers to implement various employment agreements, including confidentiality agreements and agreements not to compete, as well as appropriate agreements with independent contractors. Her proactive, preventive maintenance approach enables employers to avoid litigation whenever possible, and to ensure that essential defenses are in place should employee claims be asserted. When needed, Ms. Lindeman represents business clients in employment related litigation in federal and state court, before government agencies and in mediations and arbitrations.

Ms. Lindeman was previously employed as an Associate in the Labor & Employment Department of Proskauer Rose LLP (1999-2007), and as a Labor & Employment Associate with Grotta, Glassman & Hoffman, P.C. (1996-1999). She also served as a Judicial Clerk to the Hon. Stanley R. Chesler, U.S. Magistrate Judge, D.N.J. (1995-1996).

Ms. Lindeman publishes and lectures widely on the legal aspects of human resource issues, and provides compliance and management training for businesses and professional organizations.

Focus: Employment Law, HR Compliance and Consulting, Employment Litigation, Employment Contracts, Discrimination and Harassment, Wage and Hour Compliance, Management Training

Education: J.D., Rutgers University School of Law, Newark (1995), highest honors, Rutgers Law Review, Order of the Coif, Order of the Barrister; B.A., Sarah Lawrence College (1992)

Admissions: New York, New Jersey; U.S. District Courts for the Southern District of New York, Eastern District of New York, and District of New Jersey.

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2 Responses to “Getting Back to Work in the COVID-19 Era – When Employees Refuse to Return”

  1. Dr. Kim Dang

    I’d like to ask Ms. Lindeman for an advice on how to ask a pregnant employee (due in July) to return or not return to work.

    Reply
    • Kelly McKinnis

      Hi Dr. Dang! The best way to get ahold of Ms. Linderman is to contact her directly. Ms. Lindeman can be reached via email at DL@greenwaldllp.com. – Kelly, MGE Marketing Team

      Reply

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