Working after the pandemic may seem far off. Many states are beginning to reopen, and people are starting to come back to work. Being this is a very usual situation right now there can be uncertainty and sometimes fear that accompanies the thought of going back to the way it was before the pandemic. When workers are afraid to return to the worksite during the pandemic, an important question is why they are afraid: a generalized fear versus a specific, protected reason. Despite an employer’s best efforts to create a safe work environment, some of the employees might refuse to return to the workplace based on a basic fear of rejoining public life while the pandemic is still in full force. Because Covid-19 cases and death are still on the rise in many of our states and there is a steady trend that is allowing more and more opportunity to go out and practice social distancing. This is a matter of choice such as where we choose to go and where we do not feel comfortable going. To go to the grocery store is a far cry from sitting in a crowded movie theater. To some, the thought of sitting in an office building for extended periods of the day followed by another day and then another is enough to cause serious stress and fear in many of us.
According to the division vice president of human resources at ADP in Florham Park, N.J, Tara Wolckenhauer “Keeping all associate safe is paramount and should be the guidepost for decisions surrounding returning to work.” “Employers should prepare for heightened levels of general anxiety as workers return to the worksites and adjust to a new normal.” After the final decision is made by the employer on who can continue to work remotely and who can not a decision is to be made by the employee if they choose to return to the workplace. Employers are not usually required to allow employees to make their own decision on if they return or if they do not. With that being said there are laws to protect the employee if the choice is made to not to return to their job at this time and to continue to work from home.
The employee’s legal rights are usually pretty cut and dry when they violate the attendance policy. However, during this time it might be a better choice to put hesitant employees on leave instead of firing them. On the other side of the coin allowing many people to take vacation time or PTO (paid time off) will most certainly have a ripple effect when it comes to an effective workforce sufficient to maintain operations.
According to the Occupational Safety Health (OSH) Act, it will allow employees to refuse to go to work if they reasonably believe they are in imminent danger. In order to be protected under this act, the employee must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time to qualify for this type of protection. In this situation it can not be because there is a fear of contracting COVID-19; it’s more for people who have an underlying condition and as a result, contracting COVID-19 could cause more injury to them than people who have no underlying conditions. This becomes tricky when speaking with the employee because an employer may not legally address the preexisting underlying illness that would qualify them for the OSH Act it would be a violation of their medical rights.
The National Labor Relations Act (NLRA) protects employees that are nonunionized and unionized in that they are able to band together and can not be disciplined or discriminated against based on protected concerted activity, which can include refusing to come to work for safety reasons. This will not protect a single employee but if two or more employees join and speak out in regard to the unsafe situation they are protected. A good example would be that the employer refused to allow their employees to wear a mask at work.
Another Act that is similar to the OSH Act is the Americans with Disability Act (ADA). When an employee has an underlying medical condition that puts them at greater risk from COVID-19 the employer must accommodate their request to an altered worksite, remote work, or time off. Providing previsions for the employee such as Plexiglass separators or other types of barriers might suffice for the employee.
Thanks to COVID-19 there is a Families First Coronavirus Response Act (FFCRA) which states the employee may be eligible for paid sick leave if a healthcare provider advises the employee to self-quarantine because the employee is particularly vulnerable to COVID-19. A letter of documentation must be provided to the employer from the medical personnel.
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