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Employer Considerations When Employees Refuse to Return to Work during the Coronavirus Pandemic

May 4, 2020

Disclaimer: As this situation is evolving daily, MagMutual recommends reviewing the latest guidelines for the most current information. Visit the MagMutual COVID-19 Resource Center to learn more.

Healthcare employers must be aware of certain considerations when responding to an employee who refuses to return to work due to COVID-19 safety concerns. The basis for each employee’s refusal should be carefully evaluated because there might be protected reasons that prevent termination. This article discusses some potential workplace law protections to consider before terminating an employee who is refusing to return to work.

State Law Considerations
An employee’s refusal to return to work may be protected by a state or local law. Your state, city or county may have orders in place preventing a return to work. While your practice, as an essential business, may be exempt from orders preventing a return to work, there may be other more specific orders that would protect an employee who is refusing to return to work. Some examples include if the employee has tested positive for COVID-19, has symptoms, or lives in the same household as someone who has tested positive for COVID-19 or is exhibiting symptoms. An employee would be protected from termination for refusing to return to work for those reasons and their position should be held open. To help ensure coverage for their position, consider flexible work schedules for other staff or using contract staff.

Federal Law Considerations
An employee’s refusal to return to work may also be protected by federal law such as the Americans with Disabilities Act, Family Medical Leave Act or Occupational Safety and Health Act.

  • Americans with Disabilities Act (ADA 
    Employees accommodated under the ADA are still protected. If an employee is scheduled to return to work post-COVID, but requests extended or new leave as an ADA accommodation, this request should be granted after going through the ADA process. Determine what accommodations the employee requested that can reasonably be met and discuss possible lesser accommodations that could be met for requests that would cause undue hardship.
  • Family Medical Leave Act (FMLA)
    Employees requesting leave under FMLA even when not related to COVID-19 should be granted that leave. If an employee is scheduled for leave under the FMLA, that protection is still in place. You can obtain certification from a healthcare provider for the medical need for leave or continued leave. In these situations, it is important to discuss with your employee when they expect to return.
  • Occupational Safety and Health Act (OSHA)
    While OSHA does not protect an employee’s refusal to return to work based on a generalized fear of contagion, there are two potential issues to consider. First, employers should be aware of possible retaliation claims if an employee is terminated after raising safety concerns. Employers need to be careful here and will be required to show the reason for termination was unrelated to the employee raising safety concerns to avoid liability. You will need to show that the issue was the employee’s violation of an express directive to return to work. Second, employees could have a legitimate reason for refusing to return to work, but the bar under OSHA’s refusal to work provision is very high. Showing that your organization instituted reasonable infection prevention measures in compliance with CDC, OSHA, state, and local guidance would likely prevent an employee’s claim from rising to the level of a real danger that would justify a refusal to return to work. The CDC and OSHA have issued recent guidance regarding returning to work that can be found here and here.

Childcare Considerations
If an employee is requesting a delayed return due to childcare concerns, try and work with that employee before taking adverse action. There are a few options that might be available and each employee’s situation will be unique. First, the employee might qualify for paid leave under the Families First Coronavirus Response Act (FFCRA). Second, try to identify available childcare options and assist employees in obtaining that care. This could include covering the cost of that childcare, allowing employees to take unpaid leave, or allowing employees to continue to telework.

Next Steps for Reopening
These are just a few considerations when deciding to reopen and requesting employees return to work.

  • Have open communication with employees refusing to return regarding their specific reasons. Develop written communication procedures that comply with state law for pay changes. Address any position, schedule, and benefits changes.
  • Clearly outline the safety precautions that your organization put into place so that employees are assured the CDC, state, and local guidelines are followed. Procure the necessary supplies (e.g., masks, gloves, wipes, etc.). The CDC guidelines include actively encouraging sick employees to stay at home, emphasizing respiratory etiquette and hand hygiene, performing routine environmental cleaning, and planning for infection outbreaks in the workplace. 
  • Consider how to incorporate social distancing within your workplace and how many employees can be brought back safely. This could include staggering schedules and extending some work-from-home options.
  • Finally, document when employees believe they can return to work and an agreeable date, if reached. If an employee cannot provide a date for return, document your discussion with them that outlines the safety measures your organization has that might address their concerns. Inform the employee by letter that if they do not return by a certain date, they will be deemed to have voluntarily resigned and their position will be filled. Always contact legal counsel before a final decision such as this is made. It is also important to determine with your business banking institution if terminating an employee could impact your organization’s participation in the Payroll Protection Program (PPP).

If your organization has employment practices liability (EPL) coverage with MagMutual and has any specific employment-related questions, please utilize the Jackson Lewis P.C. Hotline by calling 1-866-758-6874.

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.