GETTING BACK TO BUSINESS #3:
CAN MY EMPLOYEES REFUSE TO COME BACK TO WORK?
A major issue many employers will encounter as businesses reopen will be employees who, for myriad reasons, will not want to return to work. HR personnel and managers must be trained on how to deal with such cases, as the law on the same is both novel and evolving. Although each objecting employee should be dealt with on a fact-specific basis,
a good rule of thumb is that a generalized fear or anxiety over catching COVID-19 will not be sufficient as a reason not to come back into work
. Furthermore, those who refuse to come into work due to only a generalized fear will likely become qualified for state or federal unemployment benefits. HR Managers need to be equipped to handle employees who claim fear of the pandemic, but in reality, have no specific, legitimate reason to decline to return to work— especially when the office is open and their job is waiting for them.
HR also needs to be astute in recognizing when employees may or may not qualify for Families First Coronavirus Response Act (“FFCRA”) leave, even if they themselves are not sick (i.e. if schools are closed or childcare is otherwise unavailable due to COVID-19). Employers who have fewer than 500 employees are covered by FFCRA, and those companies with fewer than 50 employees may be able to be exempted from providing some FFCRA benefits by the Department of Labor.
FFCRA offers two (2) new types of leave for employees: Paid Sick Leave and an Emergency Family and Medical Leave Act Paid Expansion. These benefits can be used consecutively.
Paid Sick Leave
-Employees can qualify for two (2) weeks (80 hours) of Paid Sick Leave at their regular rate of pay for any of the six (6) following reasons:
- Max Cap of $511/day ($5,110 in aggregate):
- Employees are unable to work because they are subject to a federal, state, or local COVID-19 quarantine or isolation order.
- Employees are unable to work because they have been advised by a health care provider to self-quarantine for a reason related to COVID-19.
- Employees are experiencing symptoms of COVID-19 (as identified by the U.S. Centers for Disease Control and Prevention) and are seeking a medical diagnosis.
- Max Cap of $200/day ($2,000 in aggregate):
- Employees are unable to work because they need to care for someone who is either: (a) subject to a federal, state, or local quarantine or isolation order; or (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Employees are unable to work because they need to care for a son or daughter if: (a) the child’s school or place of care has closed; or (b) the childcare provider is unavailable, for COVID-19 related reasons.
- Employees are unable to work because they are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Emergency Family and Medical Leave Act Paid Expansion
- Employees can also qualify for the Emergency Paid FMLA portion of FFCRA for up to 10 weeks paid at 2/3 of their regular rate of pay, with a max cap of $200/day if
employees need the time off to care for a child whose school or place of care is closed, or whose child care provider is unavailable, for a COVID-19 related reason.
Businesses should and must offer FFCRA leave when applicable. Fortunately for employers, FFCRA paid leave fronted by businesses will be reimbursed to companies in the form of refundable tax credits by the federal government, so employers should not hesitate to grant the leave for economic reasons when it is requested.
Finally, when employees raise issues about work accommodations, employers should stand ready to treat these as if they were a normal request for accommodations under the ADA, and engage in the interactive process (despite this new process looking a bit different than what a request may have manifested as in a pre-pandemic world). Such legitimate requests could range from immunocompromised individuals to those with pre-existing anxiety diagnoses that have been exacerbated by the pandemic. Each determination will need a fact-specific analysis. Regardless, prior to opening, HR managers should review the job descriptions of most employees and divvy up which tasks of each job can or cannot be performed remotely, in order to keep office populations as low as possible.