Insight Things to Consider When Employees Return to Work

Before the coronavirus began spreading around the United States, 2020 had already been a noteworthy year with conflict with Iran, the death of Kobe Bryant, and wildfires in Australia.  However, most of us will look back and remember 2020 as the year of social distancing, shelter-in-place, quarantining, runs on toilet paper, online school, and Zoom video calls.  Many have dealt with the difficulties of isolation, loss of employment, illness, and loss of loved ones during this time.

I have appreciated those who have tried to keep a sense of humor during this time.  One of my favorite trends has been social media posts by parents attempting to work at home who refer to their kids as their “co-workers.”

• “My co-worker (not the dog) licked me while I was on camera to get my attention.”
• “My co-worker threw herself on the floor wailing CHEEEEEEESECAAAAAAAKE after I told her we were out of cheesecake.”
• “Today my co worker is wearing his 2019 Halloween costume.”

I know many of us are missing our actual co-workers during this time.

As I write this, Governor Brad Little has just extended the shelter-in-place order to the end of April.  By the time of publishing, it is likely that the order has been or will shortly be lifted or modified.  Even with flattening the curve and the opening of our state, employers will have to navigate many issues arising from the coronavirus as employees return to work.  Employees may insist on continued flexibility with working from home, more flexible shifts, and generous leave policies.  There are also many employment law issues that have arisen during this coronavirus outbreak.  The following are a few considerations that employers should be aware of as many employees return to work.

What should employers be telling employees about coronavirus issues?  It is important to have a plan for addressing coronavirus risks going forward and to be open about these plans with employees.  Employers should share instruction from the Center for Disease Control and other public health authorities regarding handwashing, continued social distancing, and reporting of symptoms.  It might be a good time to remind employees of employer’s leave and remote work policies.  Covered employers should also be familiar with and communicate paid leave provided under the Families First Coronavirus Response Act, and also post the required Notice under the Act.

Can an employer still tell employees with symptoms to stay home?  Yes.  Employers can and should continue to tell their employees to stay home if they have a cough, body aches, fever or other flu-like symptoms.

What should an employer do if an employee refuses to return to work when the shelter-in-place is lifted, citing concerns of exposure?  Employers may not terminate employees for taking job-protected leave under the Family and Medical Leave Act or the Families First Coronavirus Response Act.  Absent leave, employees generally do not have the right to refuse to come to work or otherwise refuse to perform work, unless the employee believes that he/she is in imminent danger.  Each employment situation is different, and employers should address concerns with individual employees if an employee is nervous about coming back to work.  An employee cannot simply refuse to report to work because of an abstract fear of contracting the coronavirus.

Can an employer require its employees to utilize masks or other personal protective equipment?  Yes.  An employer may require employees to wear personal protective equipment, but may be required to provide an accommodation if legally required.

Can an employer ask a job applicant if he or she has been diagnosed with coronavirus or if he or she has had flu-like symptoms in 2020?  No.  This would violate the Americans with Disabilities Act.  However, an employer may screen applicants for symptoms of coronavirus after making a conditional job offer, as long as it does so for all entering employees in the same type of job and is job-related.  If the applicant tests positive, per the EEOC, the employer can withdraw a offer because the applicant cannot safely enter the workplace.

If a vaccine becomes available, can an employer force its employees to be vaccinated?  Possibly.  Some courts have enforced mandatory vaccination policies, so long as the policy is 1) uniformly enforced after an offer of employment is made; and 2) job-related and consistent with business necessity.  These policies are subject to the accommodation requirement for a disability, religious or some other legal reason.

These are just a few of the myriad considerations that employers need to have on their radar as employees return to work.  These and other unprecedented issues are constantly changing based upon guidance and directive from the government.  It is important for all employers to have plans in place, to communicate those plans, and to be up to date on ever-changing legal issues.