With many employees vaccinated and mask requirements rolled back in most states, employers are excited to reopen their offices and buildings for business as usual. But what happens if an employee refuses to return to work?
The first step is to determine what the employee’s refusal is based on. Suppose the employee is incapacitated by a serious health condition, like COVID-19, or needs to care for a family member with a serious health condition. In that case, they may be eligible for leave under the Family Medical Leave Act (FMLA). Notably, leave taken by an employee solely to avoid exposure to COVID-19 is not protected under the FMLA. Similarly, while fear of catching COVID-19 doesn’t trigger the Americans with Disabilities Act (ADA), the employer should initiate the interactive process if an employee has a qualifying disability and requests an accommodation. Accommodations may include remote work or unpaid leave. You’ll also want to consider State-specific leave guidance by connecting with an Employers Council attorney or HR Consultant.
In many cases, the employee won’t have a qualifying health condition but does not want to return to work solely out of fear of catching COVID-19. Generally, employers can require their at-will employees to physically return to the workplace. However, employers will want to approach the subject with empathy, as each employee’s experience with the COVID-19 pandemic was unique and stressful. To help put employees at ease, invite employees to share their concerns with you and have an open dialogue about what the workplace is doing to ensure the safety of their employees, including sharing any policies that demonstrate the organization is following CDC and local recommendations. You might also consider setting a return to work date several weeks out to give employees time to mentally prepare for their return or handle practical concerns, like finding childcare.
Employers Council is here to help with these challenging conversations. Contact us today!