Consider granting a “Leave of Absence” for workers too scared to come back to the office
The threat of contracting COVID–19 is a serious fear for many employees and must not be underestimated nor belittled. Many employees are reluctant to return to work or return to the worksite. What are the legal alternatives to helping those employees, while maintaining the viability of your business?
Can A Refusal to Return to Work Be Grounds for Termination?
Determining a legally defensible excuse for refusing to work can be complicated. Employers need to review all reasons the employee might refuse to return to work before considering termination of employment:
- Does the employee have valid concerns that your company is not taking necessary safety precautions to prevent the virus’s spread in the workplace?
- Does the employee have an underlying medical condition that would prevent them from returning to the workplace?
- Does the employee live with someone who is at high risk for contracting COVID-19?
In any of the circumstances above, employers must be cautioned against terminating an employee, as it could give rise to discrimination or retaliation claims under the accommodation obligations as stipulated in the Americans with Disabilities Act [ADA] and similar state labor laws. While the ADA rule does not require reasonable accommodations for employees who refuse to return to work because they live with someone who is at high-risk for COVID-19—in many of these cases, employers have been accommodating their staff when dealing with this situation.
CDC Guidelines for COVID-19 Underlying Health Condition Threats
Employees who have health conditions that put them at high-risk for contracting COVID-19 are considered to have a legitimate disability and must be granted a leave of absence or offered the option of telecommuting. According to the Centers for Disease Control and Prevention [CDC], the following health conditions have been documented to increase the mortality rate of those who contract COVID-19:
- Any disease or condition that causes an immunocompromised state (weakened immune system)
- Chronic kidney disease
- COPD (Chronic obstructive pulmonary disease)
- Down Syndrome
- Heart conditions, such as heart failure, Coronary Artery disease or Cardiomyopathies
- Sickle Cell Disease
- Type-2 diabetes mellitus
Utilizing a “Leave of Absence“ Strategy vs. Working Remotely
If the employee’s type of work cannot be performed when working remotely, it may be preferable to allow them to take a leave of absence rather than terminating them. A request to work remotely or to take a leave of absence will come down to whether the employee is eligible for remote work or leave based on traditional disability accommodation laws. The Equal Employment Opportunity Commission [EEOC] notes in its Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act that an employer may not require a qualified individual with a disability to accept an accommodation [such as working remotely]. The guidance continues to state, “if, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, s/he may not be qualified to remain in the job.“
Remember, if one employee is allowed to take a discretionary leave of absence, other employees are bound to request the same privilege. Denying leave to one employee and allowing it for another can open up an employer to discrimination claims. When granting leaves of absence, approving leave for a specific period of time is recommended. If the leave is extended, it is essential to consider how benefits are impacted and when any applicable state laws may disregard the leave of absence and deem the employee to have been terminated.
Review Your Company‘s Leave of Absence Policy
Employers must create policies and protocols to deal with pandemic employment issues that will continue to impact workers well into 2021. Companies will need to balance compassionate employee-care policies with labor law compliance—all while maintaining the employer’s right to operate a productive and successful business.
Sequoia Personnel Services can help you navigate this complex challenge. We’re here to help!