Friday, April 17, 2020

Responding to Employee Reluctance, Refusal or Inability to Remain or Return to Work During the Pandemic

Author: Mark Mathison

Employers have been facing an incredible range of complex and varied issues during the COVID-19 pandemic. Not least among these have been how best to respond lawfully to workers for whom work is available but who are reluctant to work, refuse to be in the workplace, or who may be unavailable because they are sick or have been exposed to the virus. Now, as the nation begins to contemplate a reopening process that will significantly increase the number of open workplaces, these questions will arise with increasing frequency. Making sound decisions about how to respond to employees with concerns about being at work will depend on thoughtful integration of an unusually wide variety of considerations, both legal and practical.  
The ADA, the Rehabilitation Act, and other EEO laws are one area with essential legal implications in this context. The U.S. Equal Employment Opportunity Commission (EEOC) has just posted an updated and expanded technical assistance publication addressing questions related to the COVID-19 pandemic that arise under these laws. In particular, the guidance addresses what might be reasonable kinds of accommodation for employees with pre-existing sensitivities in return-to-work situations where telework is not an option. Addressed in the guidance are not only physical conditions that make an individual vulnerable to COVID-19 but also mental illnesses such as anxiety or PTSD that may be exacerbated by stress over the pandemic. One basic, if not surprising, point in the guidance is that “flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.”
Workers Compensation and Unemployment Compensation issues may be relevant to some situations, and we have written about them here. It is worth noting, in particular, that a refusal to work that has a medical basis may be treated as involuntary under state unemployment laws, potentially rendering the employee eligible for unemployment benefits. That is, in fact, the law in Minnesota.
Paid sick and E-FMLA Leave may be available and should be considered. We have been providing information about those laws.

Another law with general application to employee concerns about being at work is the Occupational Safety and Health Act, under which employers have a fundamental duty to provide a safe workplace. OSHA administers this law and has published guidance on preparing workplaces for COVID-19 and protecting workers in low, medium, and high risk workplaces. An employer’s commitment to following OSHA guidelines can be helpful in reassuring employees concerned about being at work. 
State and federal labor laws, including the National Labor Relations Act (NLRA), are relevant to certain kinds of reluctance or refusal to attend work. Section 502 of the NLRA provides a special measure of protection for employees who refuse to work in “abnormally dangerous conditions.” This protection can even override a no-strike clause in a union contract, and it applies to all non-management employees regardless of whether a union represents them or not. An employer faced with any such refusal will be best-served to consult labor counsel.  
Perhaps the best way to integrate the many legal and practical considerations that bear on responding to worried or sick employees is to say that employers need to be consistently respectful of employees' concerns, avoiding adverse actions in all but the most unreasonable cases of employee behavior and looking carefully at all angles. These issues can arise in many challenging ways, but it is fair to say there are also many corresponding options for dealing with ---and perhaps funding--- them while potentially avoiding negative impact on employee and employer alike. Accordingly, engaging in calm, reasonable dialogue with employees to assess and address these types of concerns is clearly the order of the day.    
Compliance Assistance. The labor and employment lawyers at Lathrop GPM are up to speed and available to consult with employers on these issues. 

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