What Do I Do?

My employee refuses to return to work.

This is the first article in a planned “What do I do” series.  Our objective is to provide practical “answers for real world” and to offer other considerations to address a variety of employment-related questions.  This is not legal guidance and readers should consult employment counsel before taking any actions. 

The situation

All our exempt employees accepted a 20% pay reduction due to the COVID-19 pandemic and have been working from their homes.  Our state recognizes the pay reduction as establishing eligibility for proportional unemployment benefits.  We recently reopened our office but the pay adjustments remain in place due to ongoing business impacts.  We are generally following all the CDC safety protocols.  But you know, this is hard and we’re not perfect.

First things first: Talk to Bob

You need to understand his reasons for not returning to the office. Full mutual transparency is key to achieving a satisfactory outcome.  It’s possible that some of Bob’s reasons are or may be legally protected. 

• In an increasingly common situation, Bob has a family member with an underlying medical condition that makes them more vulnerable to COVID-19.    On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) addressed this matter as it relates to ADA accommodations.  In brief, the EEOC concluded there is no obligation to provide an Americans with Disability Act (ADA) accommodation or leave to an employee who has a family member at high risk of contracting COVID.  The EEOC went on to say that the employer is not required to make an ADA accommodation for teleworking, either.  However, the EEOC did say that employers can consider granting a personal leave.  But employers are not obligated to guarantee a job upon the leave’s expiration.  Depending on the employer’s state, Bob may or may not be eligible for unemployment benefits under these circumstances.
• If Bob asserts you (as the employer) have not created an adequately safe working environment, he may be protected under the Occupational Health and Safety Act (OSHA).
• The Families First Corona Virus Response Act (FFCRA) contains provisions to provide protected leave for certain conditions such as childcare needs, personal illness, or caring for others who have tested positive for the virus.  Some states have passed legislation defining additional protected conditions.

On the other hand, if Bob refuses to return to work out of a generalized fear of COVID, he is likely not protected. 

Should we terminate Bob’s employment?

It depends.  Some of the questions to consider include:

• Can I demonstrate a good faith effort to accommodate Bob?
• What is the business impact if Bob does not come back to the office?
• How does Bob’s continued absence impact other employees?
• What are the implications to our employment brand if we let Bob go?
• How will we respond if Bob files for unemployment benefits?
• What are others in my industry or locale doing in similar situations?
• What will we say when other employees ask what happened to Bob?

Document, document, document

• The details of your request to return to the office
• Bob’s reasons for refusing to return
• Your attempts to provide accommodation
• The company’s efforts to create a safe working environment for all employees

If you are participating in the Paycheck Protection Program (PPP) you will need to be able to address these points at a minimum.  Also, many states are requiring employers to report refusals to return to work.  Thorough documentation will be critical if Bob seeks protection under any of the possible circumstances described in this post.

Bottom line

Bob is probably not unique.  As a responsible employer and before taking any actions, you have a duty to understand the circumstances that have led to this situation. Beyond fulfilling your legal obligations, society will expect you to be reasonable, empathetic, and accommodating where possible.  However, you still have a business to run and accommodations need to be balanced against the implications and costs of your accommodations.

End Note

This is a quickly evolving area of administrative law so employers are advised to closely monitor new guidance from key agencies such as the US Department of Labor and the EEOC.

Was this article useful?  Would you like to discuss this subject or some other Human Resources challenge you are facing?  Send an email to ken@somershrsolutions.com to schedule a complimentary conversation.