Returning to Work and the Reluctant Employee
Epic Systems, the Verona, Wisconsin-based healthcare software company, announced this week that it will require all of its roughly 10,000 employees to return to work at its large campus outside of Madison by September 21, 2020. While it has been reported that employees will be required to wear masks and practice social distancing, and that employees with health issues will be offered accommodations, all others will no longer be allowed to work remotely. As such, Epic will join the legions of businesses across Wisconsin and the nation struggling with the challenges of reopening their workplaces and bringing on a full contingent of workers in the midst of a surging pandemic, which has no end in sight.
Like employees across the country in similar circumstances, Epic employees have expressed concerns that this move places their health at risk and many are understandably apprehensive and perhaps reluctant to return in the midst of the ongoing COVID crisis. Employees concerns about returning to work, and managements’ responses, raise a host of legal issues that govern the modern workplace. While there is no one-size-fits-all solution to address all of these concerns, the following is an examination of the issues to consider when employees express an unwillingness or indeed a refusal to return to work. As in most employment issues, caution is the watchword and a close examination and understanding of both the facts and legal landscape are critical before taking any action in response to these quandaries.
Occupational Safety and Health Act (OSHA)
Under OSHA, employees can refuse to work if they reasonably believe they are in imminent danger. They must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time for this to apply. The danger cannot be based on just a generalized fear, but it must be real and identifiable. As OSHA has published “Guidance on Returning to Work” (https://www.osha.gov/Publications/OSHA4045.pdf), which is intended to align with the lifting of stay-at-home orders of state and federal governments, and incorporates the recommendations of the Centers for Disease Control and Prevention (CDC), it will be difficult for employees to demonstrate that the COVID crisis, in and of itself, presents such an imminent danger under OSHA. It is also worth noting that while there are no workplace safety standards that specifically address COVID-19, employers must continue to follow their duty under OSHA to provide workplaces that are free from recognized hazards likely to cause death or serious physical harm.
Americans with Disability Act (ADA)
Under the ADA, and similar law in Wisconsin, employees are entitled to a reasonable accommodation for conditions which are covered under those laws. Employers must consider providing employees with covered disabilities reasonable accommodations due to COVID-19, such as remote work, altered worksite assignments, extended leave, flexible hours, job-restructuring, physical changes to the worksite or additional protective equipment. Such disability related accommodations are required so long as those requests do not create an undue hardship for employers. The ADA requires employers to engage in an interactive process with employees to determine employees’ disability related concerns about returning to work and how those concerns may be alleviated. Employers may ask employees for documentation to support the requested accommodation. Such discussions should be conducted consistent with internal policies to address accommodation requests unrelated to the COVID crisis. In addition, the Equal Employment Opportunity Commission (EEOC) has posted a question-and-answer document entitled What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) which provides helpful guidance on how to address employees who are concerned with returning to work due to a disability during the pandemic.
Families First Coronavirus Response Act (FFCRA) and Family and Medical Leave Act (FMLA)
If an employee’s inability to return work is directly related to circumstances caused by the COVID crisis, they may be entitled to legally protected leave under the FFCRA. Employers with under 500 employees are subject to the leave requirements of the FFCRA, which very generally provides 12 weeks of paid leave for employees who are unable to work because they need to care for children related to school or daycare closure due to a public health care emergency. It also provides employees with 10 days (80) hours of paid sick leave when an employee cannot work due to circumstances related to the coronavirus. We previously explained the fairly detailed paid leave benefits under the FFCRA which can be reviewed here: https://gpjlaw.com/families-first-coronavirus-response-act/. Accordingly, if an employer reopens, employees may be still entitled to paid leave under FFCRA if they are unable to work (or to work remotely) for certain COVID-19 related reasons. In addition to the protections under FFCRA, employees may be entitled to additional leave under state and federal FMLA. Again, review of leave availability should be conducted consistent with internal policies in place to address leave requests unrelated to the COVID crisis
National Labor Relations Act (NLRA)
Employees, whether or not they are unionized, have the right to engage in concerted activity for mutual aid or protection under the NLRA. For example, if two or more employees refused to work or accept certain assignments due to conditions related to COVID-19, or an employee demanded certain safety equipment on behalf of herself and others, such activities may be protected under the NLRA. In such circumstances, employers may be subject to fines and penalties for violating an employee’s NLRA rights should they take adverse action against such employees for engaging in that conduct. Employers should carefully analyze all such situations before taking appropriate action so as to not mistakenly run afoul of the NLRA.
Unemployment Compensation Benefits
The ability to receive unemployment compensation benefits is largely governed by state law and procedures. For example, in Wisconsin if an employee voluntarily decides not to return to work when the business reopens, they will not be eligible for unemployment benefits. Unemployment benefits are available to individuals who are totally or partially unemployed due to no fault of their own. In this example, the individual—not the employer—is choosing not to work and, therefore, would be ineligible. However, the facts of each circumstance are important. An investigation would be conducted to determine if the employee would still be eligible.
In all situations where employees express some concerns about returning to work due to COVID-19, or simply refuse to return to work due to the pandemic, employers should clearly understand the basis for the employees’ reluctance. Some of the reasons for the reluctance may be legally protected while some may not. Employees with a generalized concern about contracting the virus will likely not be protected, while employees with an underlying health condition, disability or family leave issue, may be protected. Accordingly, employers are encouraged to develop policies and protocols to review requests thoroughly and in a consistent manner, and to document how those requests are resolved. This may be a fact-intensive analysis, which will likely have to be conducted on a case-by-case basis, but it is necessary to guaranty employee safety, maintain a positive work environment, and ultimately, limit employer liability.