Some employers who want to open up their businesses and bring their employees back to work are getting pushback. While most workers are eager to return to work, companies are finding that some employees insist upon remaining at home, even if that isn’t in the best interests of the business. They don’t want to come in, but they don’t want to quit either. What should you do? This is one of several dilemmas employers must tackle as states reopen.

Some of the reasons employees don’t want to return to work may be reasonable. Some of your staff may legitimately have one or more chronic illnesses that places them in a “high risk” category for COVID19.  Others may rely on overcrowded public transportation to get to work. Unfortunately, there will always be a small subset of the workforce who perhaps enjoyed—a little too much— getting paid to stream Netflix while answering the occasional email at home. How do you make sure you take care of your good employees– while not allowing others to use the crisis to their personal advantage to the detriment of other team members and your business?

  • How do employers, who are struggling to survive, navigate these delicate labor issues?
  • How do you provide fair and reasonable accommodations to people with legitimate concerns, while not being taken advantage of by people who are not team players?
  • What new risks must employers carefully avoid when addressing these situations?

Before we tackle specific employee objections and how to address them, let’s recap the new labor laws employers must comply with:

  • Families First Coronavirus Response Act. This includes the
    • Emergency Family and Medical Leave Expansion Act (EFMLEA)
    • Emergency Paid Sick Leave Act (EPSLA)
  • OSHA. No, OSHA isn’t new. However, employers may need to update their OSHA hazards, plans, training, etc. to protect employees from any new workplace hazards related to Coronavirus.

BEFORE Bringing Employees Back…

Here are a few things to roll out PRIOR TO bringing employees back. (If you have already returned to work, just get them in place as quickly as possible):

  • Post a copy of the new FFCRA Notice. This is required. Here’s a link: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
  • Conduct a risk assessment and put together a mitigation plan. What new COVID hazards may be found in the workplace and how will you address them? Be sure to document both your findings and risk mitigation activities. Don’t just put them on paper- put them in place.
  • Put together an information packet for employees to sign off on before they return. At a minimum, you should have:
    • Policies and procedures for requesting special accommodations.
    • Detail any new workplace procedures (such as those specified by government in re-opening plans)
    • Create new policies and procedures for employee safety (e.g. COVID19 precautions for the workplace)
    • Implement any additional training necessary (i.e. how to use new equipment, protocols, etc.)

EPSLA – What You Need To Know

The EPSLA provides full-time employees up to 80 hours (two weeks) of paid sick leave for Coronavirus related reasons. Small businesses get no exemptions from the EPSLA.

When are you on the hook to pay for EPSLA? When your employee

  • Is subject to a quarantine or an isolation order
  • Receives advice from a health care provider to self-quarantine
  • Is experiencing COVID-19 symptoms and seeking a medical diagnosis
  • Cares for an individual who is subject to a quarantine order or has been advised to quarantine.

EFMLEA – What You Need to Know

EFMLEA provides for emergency paid and unpaid leave for employee absences related to COVID-19. Your employees may be eligible if they:

  • Have been employed for at least 30 days (this includes temps), and
  • Request leave because they are unable to work (including telework) because they need to care for their minor child due to closure of their child’s school or child care center, or their child care provider is unavailable.

If you are a small business (< 50 employees), you can get an exemption from EFMLEA if you follow the proper procedures. This includes proper documentation. What do you need to document?

  • An officer of the employer must document that he or she has determined that providing leave to care for a child would jeopardize the viability of the business as a going concern because:
  • The requested leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at minimal capacity, or
    • The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities, or
    • There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and those labor or services are needed for the small business to operate at minimal capacity.

Your business should have forms for employees to use to request leave. These should include key information, such as the type of leave requested, reason, etc.

Don’t have the time or the resources to create new policies and procedures? You can purchase them our our affiliate, Ravin Consultants, LLC. They offer a package of RETURN TO WORK FORMS AND POLICY TEMPLATES for $219. Use coupon code ‘CONRAD’ to get $20 off.  Click here.

Handling Your Employees’ Objections

Here are some common objections and how to address them.

  • Fear (in general) of Coronavirus
    • According to the Society for Human Resources Management, and other sources, a generalized fear of COVID-19 does not constitute a covered disability under the ADA. However, if the employee does have a known, covered disability under the ADA, such as Generalized Anxiety Disorder, and fear of COVID-19 is a manifestation of that covered disability, then the employer may need to make accommodations.

Employers should listen to their employee’s specific concerns to see if reasonable accommodations can be made. Employers should also advise employees of any workplace measures that are in place to mitigate the risk of contracting COVID-19, such as PPE, staggered shifts, plexiglass barriers, hand sanitizing, etc.) If the employee still refuses to return to work, the employer may require medical certification of the employee’s alleged restrictions.

  • Your Employee Doesn’t Want To Take Public Transportation To Work

Employers are not obligated to accommodate employee concerns about riding the subway, bus, etc. However, employers can elect to voluntarily offer alternatives, such as changing shifts to avoid peak times on public transportation,  subsidizing parking costs, etc.  

Please note: This post is not a substitute for legal advice. It’s purpose is to provide a general outline of return to work issues. Seek counsel for your specific employee issues.

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