Employee Fears at Work

While many employers are facing questions regarding layoffs and unemployment, "essential" employers face other struggles. What happens when employees no longer want to come to work?

Can we mandate employees work when they don’t feel “safe” due to COVID based on the “essential” employer designation?

People cannot stop coming to work for fear of becoming ill. You are permitted to ask them to use PTO or other accrued time off. By law, you can terminate employees if they do not come to work due to fear of getting ill. There are a few caveats to consider:

• We recommend you triple check with your legal team before you terminate anyone.

• Keep in mind, if an employee is sick, is taking care of someone who's sick, or taking care of their children... they are protected by FMLA or Emergency Paid Sick Leave (if applicable).

• There is an anti-retaliation provision of OSHA that says you cannot terminate an employee for failure to work if they are risking serious injury or death. If the employee is a high risk person (over 75 years of age, immunocompromised, serious heart condition or respiratory condition), you might want to consider some flexibility with them. Otherwise, it is unlikely this provision will apply to your employment situation.

Once our state's isolation order is done, can we require employees to be back at work?

Again, they can't stay home due to fear. When the lockdown is over, you can require them to come back to work.

What if the state lockdown is done but the federal recommendation to stay home until 4/30. Can we require people to return work?

First, if your business is deemed essential, this point is moot either way. The federal issue is truly only a recommendation and does not apply in strict terms to businesses. Keep in mind there's a chance your local government may extend state lockdowns to match federal recommendations.

If we are considered an “essential” manufacturer and people refuse work, do they become disqualified for unemployment benefits?

Yes, those employees could be terminated due to failure to come to work, and they would be disqualified from benefits. There's a chance if employees file for unemployment, they will still get paid, as the UI agency does not have the bandwidth to investigate claims right now.

Alternately, if you're concerned about employees missing work, you might try a few carrots instead of sticks (in spirit of appreciation):

• Offer employees additional PTO to be taken after the pandemic

• Offer a small weekly retention bonus

• Provide simple lunches to employees periodically

**Edify does not offer legal counsel. While this research was backed by our legal representation, we encourage you to refer to your legal team before making decisions**