Written By: Gus Lazares
Employers across the country are excited to get back to work! In some states, retailers have already opened, and restaurants will soon begin a phased reopening of their outdoor and indoor seating areas. But when businesses flip their signs from “Closed” to “Open” will the employees return along with the customers?
While the massive unemployment numbers in the headlines would suggest that employees will be scrambling to return to work, there are a couple factors that may slow their enthusiasm. First, employees or their families may be suffering from COVID-19, or they may be afraid of contracting COVID-19 by returning to work too soon. Second, the added unemployment benefits of the CARES Act may have put employees in a situation where they view the benefits of not working as outweighing the benefits of working.
So what are an employer’s options? The first step is to determine why an employee does not want to return to work. If an employee’s reason is directly related to COVID-19, and if the employer has fewer than 500 employees, then the employer must be mindful of its obligations under the new Families First Coronavirus Response Act (FFCRA). This could require the employer to provide two weeks of additional paid leave to the employee, and an additional ten weeks of paid expanded family and medical leave to care for a child whose school or childcare provider is closed for COVID-19 reasons.
If the employee’s reason is not directly related to COVID-19, but rather is a result of a fear of contracting COVID-19, then the employer must be mindful of its requirements under the ADA and FMLA to offer reasonable accommodations (i.e. telework) to the employee and/or to provide unpaid leave. Finally, if the employee simply prefers collecting unemployment to working, then the employer may choose to terminate the employee. Some employers are reaching out to furloughed employees in advance asking about their intentions to return. While this must be done carefully, it can be a helpful tool to allow the company to plan effectively.
These decisions can involve complex considerations based on ever-changing and ever-reinterpreted laws. Consult with an experienced employment attorney as you prepare your business’s personal reopening strategy, and be sure to regularly check in with the Graydon COVID-19 Task Force for the latest developments.
