COVID-19: Employees Who Refuse to Return to Work

EMPLOYEES WHO REFUSE TO RETURN TO WORK—WHAT TO DO??

Over the past few months, we have addressed several Covid-19 employment issues including important considerations for re-opening businesses and how to deal with returning employees. Now that many businesses are ramping up or already open, what should you do if your employees are apprehensive about returning to work due to fear of the Covid-10 virus?

As we mentioned in a previous post, it is critical for employers to work closely with employees to find a mutually acceptable solution. It is important to carefully inquire the reason the employee is refusing to return. If the employee simply does not want to return to work to stay on unemployment, or if it is simply a generalized fear of contracting Covid-19, you may be able to terminate them after providing the opportunity to return.

However, if an employee has a health condition that he or she believes makes it too dangerous to return to work, that employee could be protected by one or more laws. These conditions could be physical or mental, including heightened anxiety. In that case, particularly if an employee has a note from a physician, you must make “reasonable” accommodations. Reasonable does not require the employer to accept any undue hardship. But it does require you to work with the employee to agree on work from home, a shift in hours, a segregated work area, etc.

Even if any employee does not have a specific health condition, employers still must take safety precautions to protect employees. These safety precautions vary by the type of business, from a general office environment where safe distancing and proper disinfecting protocols may suffice, to a close-quartered aircraft repair station or fixed based operation requiring close contact with other employees and customers. In the latter case, additional precautions would be required, including, but not limited to, greater disinfecting protocols along with the use of protective equipment such as masks, sanitary clothing and eye protection. It is a good idea to refer to the Center for Disease Control’s guidelines on disinfecting your work environment [CDC Guidance] or one of the aviation-specific guidelines that have been published and cited at the NBAA website [NBAA Aircraft Disinfection].

On a related matter, many employers have received federal assistance through the Paycheck Protection Program (“PPP”). The PPP contains provisions for loan forgiveness if they maintain headcount, meaning they rehire workers that have been laid off. But what happens to the loan forgiveness if laid off workers refuse to return? The Small Business Administration (SBA) has implemented an interim final rule effective May 28, 2020 that provides a safe harbor for employers who have made good faith attempts to hire employees, but the employment offers have been rejected, provided that the employer informs their state’s unemployment insurance office within 30 days of an individual rejecting the offer of employment or reemployment. So, if you follow the notice rules, you likely will not get penalized if your offers to rehire are refused!

If you have any questions about any employment related matters, please contact Doug Stuart at dstuart@aerlex.com