With various governors laying out their plans allowing businesses to reopen, many employers are looking toward bringing back employees who may have been furloughed and opening their businesses to the public. A question that many employers have been asking is: What if my employees do not want to return to work because they are nervous about getting sick or are earning more through unemployment benefits?
Employers who have employees that have expressed reservation about returning to work should first talk to those employees to better understand why the employee may not return. The most common reasons that employees may express reservation about returning to work include the following:
Some employees may be earning more money through unemployment benefits than working. Thanks to the CARES Act, employees who qualify for even $1.00 of unemployment benefits are paid an additional $600 per week. An unintended consequence of the federal government’s aid package is that certain employees may be incentivized to continue to stay home rather than return to work when recalled. The $600 per week bonus is set to expire on July 31st.
What can employers do? Washington’s Employment Security Division (ESD) has made clear in its FAQs that employees who refuse work in favor of continuing on unemployment benefits risk losing those benefits entirely. Employees are required to certify to ESD (or the equivalent state unemployment benefits entity) each week that they are available and able to work. Employers who are concerned that employees may not be accurately reporting their work situation may report their concerns by calling or emailing ESD, or they may report that an individual declined work on any certification paperwork received from the appropriate state unemployment entity. Whether states have the ability or inclination to investigate such reports remains to be seen.
Employees who decline to return to work because they have unresolved childcare or school closure issues related to COVID-19 may qualify for benefits through the Families First Coronavirus Response Act (FFCRA) or possibly be eligible for expanded unemployment benefits through the CARES Act. The FFCRA provides both Emergency Paid Sick Leave (EPSL) benefits and Expanded FMLA (EFMLA) benefits for qualifying individuals. An employee may qualify for paid leave through the FFCRA if the individual is caring for a son or daughter because the child’s school or place of care is closed, or the child’s childcare provider is unavailable due to COVID-19 precautions. EPSL benefits may provide the employee with 10 days of paid sick leave and EFMLA may qualify the employee to up to 12 weeks of paid leave. Even employees who are traditionally not covered by FMLA may be required to provide EFMLA benefits. Exemptions may apply to employees who are health care providers and certain small businesses.
Historically, employees seeking unemployment benefits likely would not qualify if they were unavailable for work because of childcare issues. Through Pandemic Unemployment Assistance Act (PUAA), however, employees faced with childcare issues as a result of COVID-19, including school closures, may be awarded benefits.
It is very important that employers determine if their employees are declining to return to work because they have a health condition affecting their ability to return, including falling into a category of high-risk individuals. Washington employers are expressly prohibited from failing to provide accommodation to high-risk employees.
By proclamation, Washington employers are required to offer high-risk employees alternative work assignments, or if an alternate work assignment is not feasible or the employee refuses alternate work assignments, the employee must be allowed to use accrued leave or seek unemployment benefits. The employer is required to maintain the employee’s health insurance benefits and may not permanently replace the employee while the employee is not working because of the high-risk condition.
Additionally, employers are still required to fulfill obligations under the ADA, FMLA, or other relevant laws. Serious health conditions may need to be accommodated by the employer. Employers should work with affected employees to determine if a reasonable accommodation may be implemented that would allow the employee to return to work safely or if they qualify for traditional FMLA benefits.
Those employees who have been advised by a healthcare provider to self-quarantine due to risks associated with COVID-19 may qualify for EPSL benefits under the FFCRA. A full-time employee may be eligible for 80 hours of leave, and a part-time employee may be eligible for the number of hours of leave that the employee works on average over a two-week period.
Employees with serious health conditions or conditions that place them at high risk for infection should be dealt with carefully and both COVID-19-related laws as well as traditional laws should be considered by the employer.
OSHA regulations require that employers provide a safe work environment, free from known hazards. Employers must ensure that they are complying with all federal, state, and local ordinances when reopening their workplace. Certain industries may also have industry-specific guidelines through professional organizations that require particular safeguards. Even where employers have taken all the necessary steps to offer a safe work environment, some employees may still be fearful of returning to the workplace.
Once an employer has satisfied itself that a fearful employee does not have a serious health condition, is not at high risk for infection and does not qualify for benefits under the FFCRA, employers should talk with the employee to try to understand why they are fearful of returning to the work environment. Employers should review all steps they are taking to protect the employee from infection and find out if the employee has any suggestions for additional steps. An employee may have ideas that the employer has not considered. While an employer may not be obligated to implement additional safeguards, reasonable requests may offer further comfort to all employees.
In the end, if an employer is unable to alleviate an employee’s concerns and there is no available benefit under the FFCRA or a legal obligation to accommodate the individual, employers will have to make a business decision about how to proceed. If all employer-provided leave is exhausted, employers may allow the individual to continue on unpaid leave or discharge the employee.
An employer should not make promises related to future employment but may explain to the individual that the employer understands their position and that the employee should contact the employer when comfortable returning to the workplace. The employer should explain that it is unknown whether there will be a position available when they are ready to return to the workplace.
Return to work issues may be complicated. Accordingly, employers should feel free to contact Member Services or the Legal Department to talk through issues as they arise.