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How Do You Deal with an Essential Employee Who Refuses to Report to Work for Fear of Exposure to the Coronavirus?

Back in March, Forrester conducted a survey of Americans working full- or part-time regarding how they felt about the coronavirus disease. Their first survey (March 3–6) found that 29% were afraid to go to work because of the risk or exposure. The second (March 17–19) revealed employees’ rising fear of the coronavirus: 41% admitted to being afraid to report to work.

Usually, an employer can discipline workers for violations of company attendance policy. But as with most rules, there are exceptions. The COVID-19 pandemic is one such exception, and because of its global scale and given the fact that the Unites States now has the highest number of confirmed cases, employers by now are dealing with a higher number of employees, in particular those who are required to work on-site, who are fearful to return to work.

Talking things out

Despite stress levels understandably running high, an employer nevertheless needs to remain calm and weigh their employee’s legal rights and understandable health concerns with the company’s business requirements. Start by talking. Hear the employee out and learn what their specific concerns are, and then determine whether their concerns are reasonable.

If your employee’s concerns are within reason, talk some more and try arrive at a solution that would benefit both parties. Ideally, the employee’s concerns should be addressed fairly and your business’s requirements should be met.

If this approach doesn’t work, Robin Samuel, an attorney with Baker McKenzie in Los Angeles, suggests allowing the employee to go on leave rather than fire them for technically violating your attendance policy.

However, be careful with granting leaves, as you could end up with all your other employees following suit and your operations suffering as a result. Christine Snyder, an attorney with Tucker Ellis in Cleveland, recommends complying with the terms of your company’s time-off policy, “which typically requires approval to use vacation or PTO, to require that leave for this reason be unpaid.”

The legal rights of the employee that can come into play during the COVID-19 pandemic

Be particularly mindful of the legal rights of your employees as you try to work out solutions to your specific business operations concerns.

1. Occupational Safety and Health (OSH) Act

Your employees can refuse to work based on a reasonable belief of being in imminent danger—either due to threat of death or likelihood of serious physical harm occurring immediately or within a short period.

In the context of COVID-19, the employee can refuse to report to work due to the following:

  • A specific fear of infection backed up by facts rather than a generalized fear of contracting COVID-19 infection in the workplace
  • The employer’s inability to address the employee’s specific fear in a manner designed to ensure a safe working environment

2. National Labor Relations Act (NLRA)

This act grants employees at unionized and nonunionized employers the right to form a group to engage in protected concerted activity, as well as protection from discipline. In the COVID-19 pandemic, the refusal to report to work must be “reasonable and based on a good-faith belief that working conditions are unsafe,” said Bret Cohen, an attorney with Nelson Mullins in Boston.

3. Americans with Disabilities Act (ADA)

With this law, employees can make a request for 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.

According to the Equal Employment Opportunity Commission’s guidance on COVID-19 and the ADA, accommodations may include changes to the work environment to reduce contact with others, such as using Plexiglas separators or other forms of barriers between workstations.

4. Families First Coronavirus Response Act (FFCRA)

Your employee may be eligible for paid sick leave under the FFCRA if they have been advised by a health care professional to self-quarantine because they are vulnerable to COVID-19.

The FFCRA applies to employers with under 500 employees, and the quarantine must keep the employee from working or teleworking, but it also permits employers to require documentation for paid sick leave.

However, because of the likelihood of employees obtaining the required medical documentation due to the pandemic, employers should consider relaxing this specific requirement.

5. Age Discrimination in Employment Act (ADEA)

Unlike the ADA, the ADEA lacks a reasonable-accommodation requirement; nevertheless, Isaac Mamaysky, an attorney with Potomac Law Group in New York City, encourages employers to “be flexible in response to leave requests from vulnerable employees,” such as older essential workers—both as the right thing to do and as a way to maintain good employee relations.

Other employee rights to consider

Hazard pay

You may offer hazard pay (extra pay for doing dangerous work) to essential workers, although this is not currently mandated by federal law.

Note though, that hazard pay must be offered to all similarly situated employees to avoid a discrimination claim.

Employees at public-facing jobs that prevent them from properly observing social distancing are also good candidates for a hazard pay.

Inform and protect employees

To help assuage employees’ fears of exposure to coronavirus at the workplace, it’s wise to keep them apprised of all measures being taken to maintain a safe workplace, consistent with guidance from the U.S. Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration, and local health authorities.

Do you need to talk about HR management solutions that can be scaled to the current COVID-19 pandemic? Reach out to us.

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This article provides general information and shouldn’t be construed as legal or HR advice. Since employment laws may change over time and can vary by location and industry, please consult a lawyer or HR expert for advice specific to your business. You can also contact Payroll Systems to inquire about our HR support services.