May 22, 2020

Return to Work Quandary

If an employer decides to help protect certain workers and not recall them first to work based on the employee’s age, pregnancy or some underlying medical condition, the employer could be liable for discrimination under federal, state and/or local law.  But what if the employee declines to return to work for the very same reason? The employee is not COVID-19 positive or symptomatic, has not been exposed. The employee is just afraid to return.

On April 30th, the Texas Workforce Commission announced that employees who declined to return to work because of their age (65 or older) or have a household member who is at risk, would be granted unemployment insurance benefits despite refusing “suitable work.”

That seems to run contrary to the U.S. Department of Labor’s (DOL) website, which reads, “voluntarily deciding to quit your job out of a general concern about exposure does not make you eligible for PUA” (Pandemic Unemployment Assistance).

So, what is an employer to do? Consider related guidance from the CDC, EEOC,  DOL, existing laws, and your own policies and practices (yep, all that!). For example, if the employee has been advised by a health care provider to self-quarantine due to age, pregnancy, or some underlying medical condition the employee may be eligible for emergency paid sick leave (EPSL) under the Families First Coronavirus Response Act (FFCRA) and/or Family and Medical Leave (the good ‘ole fashioned kind, not the Emergency version under the FFCRA).

Tip: Remember the Power of Why! If an employee expresses a concern about returning to work, talk to the employee about the concerns. Be proactive. Tell employees in advance all the things you are doing to keep them safe. If the concern is related to a protected status, engage the employee in an interactive dialogue.  Instead of requesting a doctor’s note, the EEOC recommends, “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.” (See A.5.)