The COVID-19 pandemic has been and continues to be scary. But what should you do if their fears keep employees from coming to work?
It’s Thursday morning, and three workers call out. One has a dental emergency, one is caring for a sick child, and the other says that she’s not coming in as long as the coronavirus presents a risk. What can you do legally, and what are the worker’s rights?
Decisions about who can work remotely and who needs to be onsite should be weighed carefully, and the rationale behind these decisions should be communicated to staff. At this point, be prepared for how you will discipline (or fire) employees who refuse to come to work because they are fearful. These disciplinary actions will be permissible in many circumstances.
Generally, employers aren’t required to allow employees to continue to work remotely if they can demonstrate that they’ve complied with all necessary measures to keep everyone safe in the workplace. This means meeting the requirements of the Occupational Safety and Health Act’s general duty clause, which mandates that employers keep the workplace free from recognized hazards that do or could cause death or serious physical harm/illness.
To protect yourself, consider a few steps:
- Screen employees and visitors for fever.
- Use social-distancing techniques such as staggered shifts, fewer and smaller in-person meetings, and breaking up spaces with barriers.
- Offer personal protective equipment that is consistent with federal guidance. Make sure staff know how to use the equipment and clean it (if it is reusable).
- Review and update cleaning techniques as needed. Make sure workers have access to adequate cleaning supplies such as hand sanitizer and antibacterial wipes.
- Adopt a flexible remote-work policy, and ensure that staff have the equipment, devices, and tools they need to work from home.
It is important to realize what rights employees have. For instance, the National Labor Relations Act’s “protected concerted activity” clause states that an employer can’t discharge, discipline, or threaten an employee for talking with coworkers about working conditions or other issues. Therefore, workers can’t be punished for sharing their concerns about going to work during the pandemic or questioning what their employer is doing to protect them. However, they can lose this protection if they say egregiously offensive or maliciously false things about their employer.
At the same time, under the Americans with Disabilities Act (ADA) and state equal employment opportunity laws, if a disabled worker is concerned about returning to work due to being at a higher risk of illness from COVID, that person may be protected. In this case, you should discuss possible accommodations with the employee that addresses specific concerns.