As we approach the reopening of businesses, there is a concern that workers may refuse to return to work when the restrictions are lifted.

Employers have tough decisions ahead and must weigh the employees’ legal rights and understandable health concerns with the organizations’ business needs.

Listening to the employee and having a conversation with them is a very good first step. What are their specific concerns? Are they reasonable? If so, you may be able to avoid any unneeded escalation just by simply coming to an amicable agreement.

However, what happens if you’ve had a conversation and an agreement can not be reached? Due to the many regulations still in place, employees still have rights and protections to be aware of.

Typically, an employer can take negative employment action for the employees that violate their attendance policy. However, there are exceptions to that rule, and in certain cases putting hesitant employees on leave may be a better solution than firing them.

Referring back to your existing policies regarding time off is a start and then you can go from there.

OSHA Protections

Employees can refuse to work if they reasonably believe they are in imminent danger, according to the Occupational Safety and Health Act (OSHA). Employees must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period for this protection to apply.

An employee can refuse to come to work if:

• The employee has a specific fear of infection that is based on fact—not just a generalized fear of contracting COVID-19 infection in the workplace.
• The employer cannot address the employee’s specific fear in a manner designed to ensure a safe working environment.

The U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers that addresses the disease and provides guidance and other resources for preventing exposure to and infection with the virus.

ADA Protections

Employers should make efforts to accommodate employees who request 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.

The U.S. Equal Employment Opportunity Commission (EEOC) has created a landing page entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which provides links to resources and guidance.

Employer should not that the Age Discrimination in Employment Act, unlike the ADA, does not have a reasonable-accommodation requirement.

However, flexibility in response to leave requests from vulnerable employees, such as older essential workers is certainly beneficial to bolster employee relations and to promote the overall safety of your workers.

FFCRA Protections

If a health care provider advises an employee to self-quarantine because the employee is particularly vulnerable to COVID-19, the employee may be eligible for paid sick leave under the Families First Coronavirus Response Act (FFCRA).

The FFCRA applies to employers with fewer than 500 employees, and the quarantine must prevent the employee from working or teleworking.

Read more about the FFCRA and its specifications on our website.

NLRA Protections

The National Labor Relations Act (NLRA) grants employees at unionized and nonunionized employers the right to join together to engage in protected concerted activity. Employees who assert such rights, including by joining together to refuse to work in unsafe conditions, are generally protected from discipline.

Employers should note that the refusal to come to work must be “reasonable and based on a good-faith belief” that working conditions are unsafe.

DISCLAIMER:

This website does not provide legal advice and Provider is not a law firm. The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. We recommend you consult a lawyer if you want legal advice.