Can You Force Employees to Return to Work and What Happens if They Refuse?

Posted: June 10, 2020 |

          You received the news that your business is permitted to reopen.  For employers, this involves coordinating staff to return to work safely.  But some employees may not feel ready and may be reluctant to return to work due to a fear that it may increase the risk of exposure to COVID-19.  As with nearly everything related to the pandemic, bringing employees back to the workplace is complicated.

May Employees Refuse to Return to Work?

Employers must be aware that the requirements of the Families First Coronavirus Response Act (FFCRA) remain in effect through December 31, 2020. Employers subject to the FFCRA must provide both Emergency Paid Sick Leave and Expanded Family and Medical Leave to their eligible employees who may refuse to return to work.  Our earlier blog discussing the reasons an employee may be eligible for leave rights under the FFCRA can be found here.

The United States Department of Labor continues to update the frequently asked questions portion of its website regarding coverage and rights afforded under the FFCRA.  A recent update provides the following guidance addressing employees who may refuse to return to work based on childcare obligations:

I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

 

No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

 

Under this guidance, employees who lose childcare due to a COVID-19 related reason may be able to take Emergency Paid Sick Leave and/or Expanded Family and Medical Leave under the FFCRA. 

Additionally, employees who are currently experiencing COVID-19 symptoms or those caring for a family member afflicted with COVID-19 may be eligible for leave under the traditional Family and Medical Leave Act as well.

If an employer has any reason to believe that an employee suffers from a disability, the employer should engage in the interactive process with the employee because the employee’s absences may also be protected by the Americans With Disabilities Act, the Fair Employment and Housing Act, or any number of additional leave laws.

What Happens When an Employee Refuses to Return to Work Based on Fear?

            One tricky question is whether the FFCRA or the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) permits an employee to remain employed while refusing to report to work based upon a subjective fear of possible exposure to COVID-19.  Neither the FFRCA nor the CARES Act provide an employee the right to remain employed while refusing to work for purely subjective fears.  Rather, under those laws an employee who refuses available work may be considered to have resigned the employment. 

In California however, an employer who has asked an employee to return may have to analyze whether the employee can perform the job functions through telework because the State currently suggests that many industries continue to use telework and modified office schedules.  The State has published procedures for various industries regarding procedures for returning to work here and our earlier blog on reopening orders can be found here

Employees cannot refuse to return to work solely based upon a desire to continue receiving unemployment benefits.  However, under the CARES Act, specific, credible health concerns might allow an employee to quit his or her job and still be eligible for unemployment benefits. The Department of Labor cited by way of example, an employee diagnosed with COVID-19 by a qualified medical professional.  Although the individual no longer had COVID-19, the illness caused health complications that rendered the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation.

The Department of Labor is advising employees to report to OSHA if they believe that their employer’s response to the possible spread of COVID-19 creates a serious safety hazard.  Thus, it is crucial for employers to ensure they are compliant with both Centers for Disease Control guidelines and OSHA and State guidance when reopening their businesses. 

            The California Employment Development Department (EDD) has also issued guidance regarding an employee’s ability to claim unemployment based upon a fear of returning to work.  The EDD guidance issued here provides:

The CDPH (California Department of Public Health) has issued public health guidance urging individuals who are over 65, immunocompromised, or have certain serious chronic health conditions (such as heart disease, lung disease or diabetes) to stay at home due to “higher risk” factors. An individual is disqualified for UI if they refuse to accept “suitable” employment when offered. Under California law, the EDD will consider whether the particular work is “suitable” in light of factors such as the degree of risk involved to the individual’s health and safety, and as a result whether the individual has good cause for refusing the work. For example, even if your employer has complied with the state’s requirements for reopening, and any and all government safety regulations, you would have good cause to refuse to return to work if you are at greater personal risk due to higher risk factors as identified by the CDPH.

 

However, you may not have good cause for refusing suitable work if your employer was willing to allow you to telework and you still refused the suitable work. In this scenario, you could be disqualified from continuing to receive regular UI benefits because there was an alternative available to work without compromising your health and safety. Therefore, workers are encouraged to speak with their employers about work options that are consistent with public health guidance, the reopening requirements, and any local public health orders. Such options may include telework or modified schedules. Employers may have a legal obligation to accommodate certain health conditions.

           

It is highly advisable that employers engage in the interactive process with any employee who indicates a fear or unwillingness to return to work.  The employer’s efforts to discuss potential accommodations show good faith, which could be helpful to defend the employer in litigation.  Engaging in the interactive process also demonstrates to employees that their concerns are being thoughtfully addressed and employees may be less likely to bring a claim later.

Should you have any questions regarding guidance, strategies, or anticipated issues with the reopening of your business, the attorneys at Ferruzzo & Ferruzzo, LLP are ready to help you develop plans to suit your business needs.

James F. Rumm

James F. Rumm, Esq. is a Senior Associate and member of Ferruzzo & Ferruzzo, LLP’s Employment Practices Group.  James focuses on employment litigation, wage and hour class action defense, defense of discrimination, harassment and retaliation claims, complex business litigation, and trial work. James has trial experience in a wide range of areas including business litigation matters, employment litigation, personal injury and product liability matters. James has also argued on several occasions before both the California Court of Appeal and the Ninth Circuit Court of Appeals.