Employers need to observe caution when deciding to replace an employee who refuses to work because of concerns about COVID-19.
We recommend they consider the following:
- Recalled employees may have a right to job-protected leave under a city ordinance, state law, or the federal Families First Coronavirus Response Act (FFCRA).
- Employees who are may be in a high-risk category with an immunocompromised or an underlying condition, may be entitled to a reasonable accommodation under the ADA (Americans with Disabilities Act) or California law if their situation doesn't qualify them for leave under FFCRA (or if they have run out of leave).
- Allowing an employee to work from home or, if working from home is not possible, to take an unpaid leave could be considered a reasonable accommodation.
- Employees who live with someone who is high risk may not be entitled to a reasonable accommodation under federal law, but it is strongly recommend allowing them to work from home if possible or take an unpaid leave if requested. Otherwise, they may decide to quit and file for unemployment insurance. If you want to keep them as an employee, being compassionate and flexible is your best bet.
- Under Occupational Safety and Health Administration (OSHA) rules, an employee's refusal to perform a task will be protected if all of the following conditions are met: Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so; the employee refused to work in "good faith," which means that the employee must genuinely believe that an imminent danger exists; a reasonable person would agree that there is a real danger of death or serious injury; and there isn't enough time, because of the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Check state and local law to see if additional protections may apply.
Instead of replacing employees who express fear about contracting COVID-19, you should consider methods to encourage employees to come to work and to help put their minds at ease. Consider emphasizing all of the safety methods you have put in place (such as scheduled handwashing, frequent disinfection of surfaces, social distancing rules, reduced customer capacity, staggered shifts, or more extreme measures if warranted by your industry). You may elect to rely on the CDC (Centers for Disease Control and Prevention) as well as local health department guidance for establishing safe working conditions at this time. You might also consider offering premium pay (a.k.a. hazard pay) or additional paid time off for use in the future to employees who must come to work.
This document is not intended to provide any legal advice or opinion on any individual situation and should not be relied on to determine individual employers responses to the impact of Coronavirus on their HR policies or strategies. The information provide is based on various articles we have read and summarized herein.
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