If Your Employees Refuse or Are Afraid to Return to Work Due to COVID-19, Here’s What You Need to Know as an Employer

With 100,000 small businesses forced to shut their doors permanently amid the COVID-19 shutdown in the U.S., those who remained to stay in business are eager to reopen their doors once again. As businesses across the country reopen their doors and employees return to work after the shutdown, employers are facing the challenge of some employees refusing or raising concerns about returning to work.

Although being nervous about returning to work is not a valid excuse to not return to the workplace, some employees may have a legitimate concern regarding potential exposure to coronavirus.

Legal Rights of Employees for Returning to Work

Employees do have the right to be concerned about their health and safety in the workplace. An employee may also be concerned with the safety and wellbeing of their family. Employer Support Services (ESS) has provided important policies for reference so that businesses can best accommodate employees with legitimate concerns regarding their return back to the workplace.

Families First Coronavirus Response Act (FFCRA)

The Department of Labor (DOL) issued the Families First Coronavirus Response Act (FFCRA) to protect employees and accommodate their families during these uncertain times. If an employee or a member of their family has been advised by a medical professional to self-quarantine, it is important to collect the proper documentation. In doing this, your employee – and your business – can receive the benefits from FFCRA.

In addition to providing the proper accommodations to the employees that qualify, be sure the FFCRA notice poster is prominently displayed in the workplace for employees to see and to comply with federal law.

[RELATED: Downloadable FFCRA Notice Poster for the Workplace]

For more information, refer to our previous blog regarding FFCRA requirements for employers and their employees during COVID-19 and additional qualifications.

 

Occupational Safety and Health Act (OSHA)

OSHA works to prevent workers from acquiring work-related injuries, illnesses, and deaths. During the COVID-19 pandemic, OSHA is also working to ensure workplaces are taking the proper preventative measures to minimize employee exposure to coronavirus. This means there are specific standards that you must uphold so that employees not only feel safe to return to work but also are kept healthy and safe.

[RELATED: How to Safely Reopen Your Business After COVID-19]

OSHA has also provided recommended practices and procedures to prevent employee exposure to the virus. For the safety and wellbeing of your employees, it is important to follow these policies and procedures to ensure your workplace is safe for all employees. If employees do not feel protected at work, they could file a complaint to OSHA, which would cause more problems to arise, so be sure to follow the procedures carefully.

 

Americans with Disability Act (ADA) Accommodations

If an employee with an ADA disability says that they are afraid to return to work, it is important to talk to them about their situation. There is a possibility that they are facing additional hardships due to the pandemic and may have difficulty safely returning to work. As an employer, you must accommodate these disabilities.

According to the U.S. Equal Employment Opportunity Commission (EEOC), “An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.”

This also includes employees with underlying health conditions that put them at high risk for COVID-19 as they may also be afraid to return to work. This is a discussion you should have with your employee to find alternative work arrangements or provide additional time off work. For more information, read our previous blog regarding accommodations for at-risk employees.

 

If an Employee Does Not Qualify for the Above Protections, They Are Required to Come to Work

If an employee still refuses to return to work despite you following all state and federal regulations for creating a safe work environment, talk to your employee about their concerns and what you can do to help. There are protocols you can implement, such as encouraging employees to wear masks, even if your company is not legally required to enforce that protocol.

However, if employees are refusing to return to work so they can continue receiving unemployment benefits, this will be another discussion to have with your employee.

 

Refusing to Return to Work for Unemployment Benefits

One of the causes of employees refusing to return to work may be to continue receiving unemployment benefits provided under the CARES Act. The CARES Act gives unemployed workers higher payment benefits up until July 31, 2020. However, unemployment benefits are not an option if they are refusing to work without a valid reason according to the state and federal laws.

The Department of Labor states that to qualify for unemployment, “you must have to have separated from your last job due to lack of available work.” The employee, or former employee, must “be able to work, available to work, and actively seek work each week you claim benefits.”

Therefore, refusal to work to collect more pay through unemployment benefits does not qualify for the unemployment insurance program, and it is not a legitimate reason to not return to work.

 

Report Refusals to Work to Your State’s Department of Labor

Refusing to return to work the same hours at the same pay rate in safe work conditions is considered fraud and should be reported to the Department of Labor. Businesses in Louisiana can report unemployment insurance fraud to the Louisiana Workforce Commission.

If your business operates outside of Louisiana, go to your state’s Department of Labor website.  The state department site should have resources available to report employees refusing to work so they can receive unemployment benefits.

For more information regarding HR protocols for employees refusing to return to work, speak to an ESS representative today at 225-364-3000.