Megan: Childcare is probably the number one concern. With schools and daycares reopening at different paces across the country, many employees are having a tough time navigating the process. Some of my clients with largely white collar workforces (which were better able to transition to working remotely) report that employees are simply taking on the challenge of “doing it all,” and working from home while also handling childcare and/or schooling responsibilities.
Employees who cannot work remotely are also finding creative ways to ensure that their children are taken care of, so that they can continue working. But until the school and daycare systems return to something closer to normal, this is going to be a big challenge for employers and employees.
Megan: The answer to this question largely depends on where the employee and employer are located, as state and local laws play a big role in employment issues like this one. Some states have enacted specific guidelines for the return-to-work process, which allow employees to refuse to return to work for certain COVID-19 related reasons. And nationwide, private employers with fewer than 500 employees are required to provide paid leave to employees under specific circumstances, following passage of the Families First Coronavirus Response Act (“FFCRA”).
For example, if an employee covered by the FFCRA states that he or she cannot return to the workplace or telework for a qualifying reason (such as experiencing symptoms of COVID-19 and seeking a medical diagnosis), then the employer must evaluate its obligation to provide leave to the employee. On the other hand, employees who refuse to return to work for a non-permissible reason (such as a refusal to comply with mandated workplace safety measures, like wearing a face covering) may not be entitled to any job protection or leave.
EBI: But what about employees who are refusing to come back purely because they are afraid? Can the employer say you must come back or say goodbye?
Megan: Good question! I have to give a typical attorney answer: “It depends.” In California, for example, an employee who refuses to return to work may be entitled to unemployment benefits if he or she can show that the employer is not following industry guidance for safely reopening. In that scenario, the employee can claim that his or her fear of returning to work was “valid.” But in most instances, a non-specific, non-disability related, generalized “fear of return” will not be a valid excuse for refusing to return to work. As always, employers should consider the specific facts pertaining to the employee and make decisions on a case-by-case basis.
Megan: This is definitely a challenging time for employers, as the pandemic has presented new issues that often require a fact-specific, case-by-case analysis (perhaps more so than ever before). As I previously mentioned, state and local laws play a big role in this area. And, the Equal Employment Opportunity Commission (“EEOC”) has indicated that employers should offer reasonable accommodations to employees who are at a higher risk from COVID-19. Allowing those employees to work from home is probably the best choice (if that option is possible). But if a high-risk employee cannot work remotely, there are other steps the employer should consider, such as using plexiglass or other physical barriers to help ensure minimum distance between the employee and his or her coworkers or customers. Of course, every situation is different.
From a privacy perspective, employers must also take care to ensure that all medical information about a particular employee is stored separately from the employee’s personnel file (although employers can store medical information related to COVID-19 in existing medical files). Confidential medical information includes any employee communication to the employer confirming that he or she has tested positive for COVID-19 or suspects that he or she may have COVID-19. Employers must also keep confidential any notes or other documentation created as part of any employee health screening processes (such as symptom questionnaires or daily temperature checks).
Because this area is constantly evolving, employers should consult the most up-to-date state and federal agency guidance, and work with outside counsel, as appropriate, to determine how to handle these issues.
Megan: This is a great time for employers to revisit their employment policies and handbooks to address COVID-19 related issues. Although the process can be overwhelming, many state and federal agencies have issued guides and FAQs that will help employers craft new policies (and your attorney can always help, too).
As for guiding legislation, employers should be looking to a couple of new laws – the FFCRA and the CARES Act are the primary ones – as well as updated guidance on existing laws, which has been issued by a variety of agencies, including the Department of Labor, the EEOC, and the Occupational Safety and Health Administration.
Of course, every business is different and the laws that affect one employer may not have the same impact on another employer. Certainly, the level of face-to-face contact and logistics of the physical workplace are important pieces of the back-to-work planning process. If they haven’t already done so, employers should also be focused on complying with CDC health guidelines, so that employees, and customers, if applicable, feel safe as they return to business.
Megan: State unemployment insurance programs have been the primary source of support for individuals who have lost their jobs as a result of the COVID-19 pandemic. If an employer is otherwise complying with applicable state and local laws, the Americans with Disabilities Act (“ADA”), the FFCRA, and state and federal anti-discrimination laws, then the employer doesn’t necessarily have any other legal obligations to an employee who cannot work.
Of course, many employers do not want to lose employees who will be able to return to work after the pandemic ends, and those employers always have the option of going above and beyond the basic legal requirements. However, if an employee simply refuses to work without communicating a permissible purpose for doing so (which varies according to state and local law), and the employer cannot accommodate that employee within existing legal requirements, then both parties may need to go their separate ways.
Megan: HR managers across the country have been busier than ever since March of 2020, but the good news is that they are experienced in responding to requests for accommodations and have adapted remarkably well to this crisis. As I’ve mentioned, the FFCRA provides a new set of leave rules, and the updated guidance interpreting the ADA in a COVID-19 world helps employers determine how to meet their legal obligations to employees.
At the end of the day, employers want to keep their businesses running and growing, while also attracting and retaining the best possible talent. That has become a tougher balancing act these days, but I am confident that employers are rising to the challenge. And, on the flip side, this pandemic has also shown the resiliency of workers, who have taken on more challenges than ever before, while still performing their jobs.
All of that is a long-winded way of saying that this is a time where flexibility is a must! Even with the existing guidance currently available, the world of work will continue to change as this pandemic progresses, and employers will need to evaluate employee requests on a case-by-case basis.
We understand this is a lot to learn on top of everything else you are juggling in this new economic environment.
Our goal at EBI is to give you the knowledge and tools necessary to optimize your business and improve the overall quality of your operations. From a comprehensive return-to-work health and safety program to background screening, we have a full suite of solutions to optimize your business.
If you’re ready to Return to Work, our EBI experts can help.
Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.