DC, MD, VA Employers: If Employees Don’t Return, How Will Your Business Operate?

Possibly. Keep reading to determine how as an employer you can best navigate this unique situation.

No. The Department of Labor Employment and Training Administration additionally makes it clear that a general fear of exposure to COVID-19 isn’t enough to refuse work or quit your job. There are specific concerns that an employee could have that could qualify them for unemployment (keep reading on).

Yes. If it is found that an employee has left an employer due to unsafe working conditions under the Occupational Safety and Health Administration (OSHA) guidelines, they may be able to claim unemployment benefits. OSHA’s right to refuse work guidance predates the pandemic and outlines a worker’s right to refuse dangerous work. According to OSHA, an employee may only refuse to come to work if:

• The employee asked the employer to eliminate a hazard in the workplace, but the employer has failed or refused to do so;
• The employee has a “good faith” belief that an imminent danger exists;
• A “reasonable” person would agree there is a “real danger” of death or serious injury; AND
• There is no time to get the hazard corrected through appropriate channels (i.e., OSHA inspections)

Communicating with the employee is needed to assess the situation. The Americans with Disabilities Act (ADA) does not grant an employee a general right to refuse work due to a disability, as such would be a total refusal to complete the essential functions of the job. Keep in mind that some state or local laws may define “disability” differently than the ADA, so an employer should vet those accordingly with their employment attorney.

While a generalized fear of COVID-19 is not a covered disability under the ADA, if the employee does have a known, covered disability under the ADA, such as Generalized Anxiety Disorder, it behooves employers to recognize that fear of COVID-19 in the workplace might simply be a symptom of that covered disability. Under those circumstances, the employer must communicate with the employee to provide reasonable accommodations that do not constitute an undue hardship to the employer. If a leave of absence or a remote working arrangement is appropriate, the ADA may require the employer to provide such accommodation. Employers should set a future time for a reassessment of the accommodation.

Employers should 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 EEOC’s guidance on COVID-19 and the Americans with Disabilities Act (ADA) notes that accommodations may include changes to the work environment to reduce contact with others, such as using plexiglass separators or other barriers between workstations.

The Age Discrimination in Employment Act, unlike the ADA, does not have a reasonable-accommodation requirement. Nonetheless, employers should be flexible in response to leave requests from vulnerable employees, such as older workers, as it is the right thing to do and would bolster employee relations.

The FFCRA applies to employers with fewer than 500 employees, and provides employees with paid sick leave if, “[t]he employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” The US Department of Labor has explained that “concerns related to COVID-19” means, for example, that the employee is “particularly vulnerable” to COVID-19.

The quarantine must prevent the employee from working or teleworking. FFCRA regulations permit employers to require documentation. However, employers may relax requirements due to the difficulty some employees could have to access medical providers and to encourage ill employees to stay home.

If teleworking is possible, then the employee would not be entitled to FFCRA paid sick leave but may be entitled to a remote working arrangement as a reasonable accommodation. On the other hand, if the employee cannot telework, then he/she would be entitled to FFCRA paid sick leave and then, possibly, a further leave of absence under the ADA, if it does not impose an undue hardship for the employer.

Some workers are receiving better income on unemployment than their normal salaries due to the COVID-19 stimulus bill, which provides an additional $600 weekly in the federal benefit until July 31 and state-administered aid for up to 39 weeks.

This goes back to communicating with your employees. Seek employee agreement if there are changes to their job. Employees may be able to turn down work and continue to qualify for unemployment if the employer “drastically” changes employees’ jobs. Examples of drastic changes may include a severe pay cut, permanent changes to employees shifts, or moving employees to a facility that would require a substantially longer commute. Small changes, like adding an extra hour to their shift or moving employees to a different part of your facility, will not count toward unsuitable work conditions. Regardless of the severity of changes, communication, and employee agreement is critical.

It is unclear whether tipped workers who come back to work with the same base pay but receive far less in tips due to decreased foot traffic will be able to argue that their pay has been cut. If the employer’s direct wages plus employees earned tips add up to less than the federal minimum wage or the state minimum wage, employers may need to make up the difference.

An employer usually can discipline workers for violating its attendance policy. But there are exceptions to that rule. Putting hesitant employees on leave may be a better choice than firing them. However, if an employee can use vacation or paid time off (PTO) for leave, employers may be lacking a workforce sufficient to maintain operations. Therefore, an employer may want to rely upon the terms of its existing time-off policy that typically requires approval to use vacation or PTO and ultimately require that leave be unpaid.

The CARES Act Pandemic Unemployment Assistance (PUA) program expands the scope of workers who can receive benefits, including people who are unable or unavailable to work because of certain health or economic consequences of the pandemic, even if their workplace is open. For example, employees may qualify for PUA if they cannot work because they have:

• been diagnosed with the virus
• been directed by a health authority to quarantine
• been providing care to a sick household member
• to care for a child at home while school or child-care facilities are shut down due to the pandemic
• an underlying medical condition that prevents you from working

Workers no longer eligible to receive traditional unemployment who have qualifying conditions can instead qualify for PUA. In such cases, workers may have to file a new unemployment claim, or their state’s unemployment office may reassess an existing one to deliver benefits. Individuals eligible for PUA benefits will receive their state unemployment aid for up to 39 weeks and an additional $600 per week until July 31. Expanded unemployment under the federal stimulus bill is currently in place through the end of 2020.

It can depend. Individuals able to work from home with pay and workers receiving paid time off do not qualify for unemployment benefits under the CARES Act. However, if a teleworker is unable to work due to becoming ill or caring for another person due to the virus, they may become eligible. If a worker has exhausted their PTO and is still out of work, they may qualify for unemployment benefits.