One of the hardest things about the COVID-19 crisis is that nobody is sure about when things will open back up and life can go back to “normal.” If you’re an employer, this likely means you have more questions than answers about how to move forward. What if an employee refuses to come back to work? What if an employee has a sick family member at home? What if an employee has children who are at home because schools are closed? Why can’t anyone give you a straight answer? Because there aren’t any. This is unprecedented and everyone is just going to have to do the best they can.
With that said, while we can’t predict the future, we are here to help you plan your next steps. Here’s what we think you should consider about getting your employees back at work.
Timing — When Should We Bring Employees Back?
Geography matters, so first and foremost, follow your state’s lead. If your state remains under a stay-at-home or shelter-in-place order and your business doesn’t qualify as essential, stay closed. Some places, such as New York, are hotspots for the disease, while other places, such as rural areas of the Midwest, appear to have barely been touched by it. If your state starts to lift restrictions, you can probably start bringing people back into the office. But, to protect your employees and to limit your liability, follow the lead of the states where your employees are located.
Laws to Consider — What if Employees Say They Can’t Come to Work?
As with so many things, it depends on why the employee says he or she is not able to work. We should consider three main laws when creating a back-to-work plan or policy: the new Families First Coronavirus Response Act (FFCRA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA).
- FFCRA (applies if you have fewer than 500 employees): This is the new law on the block (about which we have posted here, here, and here). Under FFCRA, look for two main issues: (1) Has your employee already used the emergency paid sick leave (up to 80 hours of paid leave for six qualifying reasons); and (2) does your employee need to stay at home because kids are at home (by virtue of daycare/school closings)?
Make sure you have physically posted the appropriate notice before you re-open. Also, if any employee raises one of these reasons for not coming to work, check to see if you need to give them some paid leave.
If an employee has a child at home because school or daycare is closed by the pandemic, check to see if you need to provide paid leave (at a two-thirds rate with a cap). Note, however, when the school year ends in your area, this may change an employee’s eligibility. If that employee typically arranges an alternate form of childcare in the summers, is that childcare available? And, if not, is the unavailability pandemic related? The facts of each situation may alter your decision-making.
- ADA (applies if you have at least 15 employees): The ADA protects qualified individuals with a “physical or mental impairment that substantially impacts one or more daily life activities.” COVID-19 may or may not qualify as a disability, but certain provisions of the ADA may still apply. First, be careful about medical inquiries. The ADA prohibits you from making disability-related inquiries or administering medical exams to employees unless it is “job-related and consistent with business necessity.” (Exams for individuals that you have offered a job but who have not started work yet are broader.) So, be careful about asking an employee about any immune system conditions he or she may have or requiring an employee’s temperature be taken each day. The EEOC has made clear that taking a person’s temperature is considered a medical exam. However, the EEOC has acknowledged that because COVID-19 presents a significant risk to the workplace, this exam is allowed so long as it is job-related and consistent with business necessity. Depending on the availability of tests and the employee’s job, you may be able to require an employee to be tested for COVID-19 or the COVID-19 antibodies. Just make sure the inquiry is job-related and consistent with business necessity before you do it. Further, you’ll need to consider how to protect the employee(s) whose job it is to administer these exams. Will you give them personal protective equipment (PPE)? Also, how will you record the results?
Second, the ADA requires that you keep medical records on employees – for example, a log of temperatures each day – confidential and separate from personnel files. You cannot tell coworkers that you sent someone home because he had a temperature or because she tested positive for COVID-19. This provision is often overlooked and can be the source of future liability.
A final point under the ADA is that you cannot discriminate against someone because of their association with someone with a disability. What if an employee says he can’t come back to work because his wife is immuno-compromised and her doctor has directed him to stay at home for her sake? Don’t overreact. Get a note from the wife’s doctor and then decide whether you can provide a reasonable accommodation– like PPE to satisfy the doctor’s concerns or unpaid leave.
- FMLA (applies if you have at least 50 employees): “Traditional” FMLA mandates 12 weeks of unpaid leave and job restoration for employees who are absent for a variety of reasons, including their or a family member’s serious health condition. If you were covered by FMLA before the pandemic and your employee has been diagnosed with COVID-19 and cannot return to work immediately, consider traditional FMLA leave. This is unpaid leave and an employee still only gets 12 weeks in a 12-month period.
FFCRA, the ADA, and FMLA are not the only laws that you need to consider, they are simply the main ones that should be on your radar. You should also pay close attention to the state employment laws where you operate. State employment laws are a patchwork that you must navigate in tandem with these baseline federal requirements. A good rule of thumb: Whatever law is most beneficial to the employee is the law that you should follow.
While understanding the law must be your first step, it is also necessary to be as flexible as possible during this time. The word “unprecedented” keeps popping up in your news feed and your conversations for a reason – we’ve never been here before! Nobody is going to get this exactly right, but your ability to work with your employees, get creative with solutions, and document that process is critical not just to your day-to-day operations but also to limiting liability in the process. Document everything. You may have to explain what you did in six months, and you may want to remember why you made a decision.
What If Employees Refuse to Come Back to Work?
Finally, the question that so many of you are asking: What if my employees refuse to come back to work? Well, that depends.
- Are your employees refusing to come to work because they fit into one of the six qualifying reasons under the FFCRA? If so, are they entitled to leave?
- Are they refusing because they are doing OK on unemployment? You may want to notify unemployment that you have a job for them (which may or may not stop the benefits).
- Are employees simply scared or nervous to come to work because they could get sick? If they don’t qualify for leave under the FMLA or FFCRA, and if they refuse to come back, the bottom line is that yes you can fire them, but do you want to? Do you think they are really scared or simply have gotten used to staying at home? Will some unpaid leave cure them?
No one wants to have to tell a court we fired someone because they were sick or scared to come to work. As with everything, let’s look at all the facts and see what is worth fighting about. This is a moment for over communicating with your employees, not for decisions made unilaterally.
Reach out to your workforce, tell them what precautions you plan to take to keep them safe and healthy, ask them what their concerns are, and work to address them. You want to keep your doors open and, more likely than not, your employees want to come back to work. Start from that common goal, and work together towards solutions.
This is Part I in a series of posts we will publish regarding re-opening following the COVID-19 closures. Other posts in this series will include practical considerations for office health policies and how to navigate data privacy as you open your doors.