What to Do When Employees Refuse to Return to Work

Miller & Martin PLLC Alerts | May 01, 2020

Author: Stacie Caraway

Few of us could have imagined just two months ago that we would have spent the better part of the past month and a half completely preoccupied with something called “the coronavirus.” Even fewer of us could imagine convincing the entire country to remain in their homes for much of this time. Fewer still could imagine people then refusing to come out.

Yet according to several recent front page newspaper articles, many employers are finding themselves in the situation where their employees are refusing to return to work. In fact, the Tennessee Department of Labor had to create a “return to work refusal form” (click to access) for employers to submit in order to end employee unemployment benefits in situations where a furloughed or temporarily laid off employee refuses to return to work when recalled.

So, as an employer, what do you do when your employees refuse to return to work?

Step One is a “what NOT to do” – and that is do NOT tell your entire workforce “anyone who is not back to work on May X will be fired.” The legal reason that this is a bad idea is there are several legitimate reasons employees may not be able to come back to work on “May X.”

Here are a few of the main ones.

A.  New Families First Coronavirus Response Act Leave

The new federal Families First Coronavirus Response Act (FFCRA) provides two new types of leave. (More detailed information about the FFCRA is available on Miller & Martin's Coronavirus Resources webpage.) 

Paid Sick Leave - In brief summary, the first type of new leave provided under the FFCRA is up to 80 hours of “paid sick leave” for employees who are:

i.  subject to a federal, state, or local quarantine order;

ii.  subject to a health care provider’s advice to self-quarantine due to COVID-19;

iii. having COVID-19 symptoms and are seeking COVID-19 testing or another form of medical diagnosis;

iv. caring for someone in categories i. or ii. who is dependent on them for such care;

v. caring for their child whose school or daycare is closed or whose regular child care provider is not available due to COVID-19-related reasons; or

vi. experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

One bit of good news – so far, there are no “substantially-similar conditions specified” as part of item vi. above. But if your employees up to now have been using “regular” accrued paid time off or have been on unpaid furlough or layoff and have not yet used their two (2) weeks of new paid sick leave under the FFCRA, it is still available for them to use until December 31, 2020 for any of the above six purposes.

Expanded FMLA Leave - The second type of new leave provided under the FFCRA, which can last up to 12 weeks, is the “Expanded Family and Medical Leave Act Leave” or “E-FMLA.” Unlike paid sick leave, E-FMLA can only be used for one purpose – reason v. above. The first two weeks of E-FMLA leave also are unpaid (but it is no coincidence that there just happen to be “up to 80 hours of paid sick leave” employees can use for reason v. above as well to cover this otherwise unpaid time). Employees also must have been employed for at least 30 days in order to qualify for E-FMLA leave.

All E-FMLA leave and paid sick leave which is taken for reasons iv. – vi. above is paid out at 2/3 of the employee’s regular pay (and is subject to employer reimbursement through tax credits; again, please see our prior FFCRA alerts for more information concerning how this works). Paid sick leave which is used for purposes i. – iii. above is paid out at 100% of an employee’s regular pay.

As with “regular” FMLA leave, E-FMLA can be used intermittently, BUT only with employer consent. Paid sick leave must be used consecutively in full-day increments IF it is being used for any other purpose aside from item v. above, then it may be used intermittently with employer consent. (It also may be used intermittently with employer consent if the employee is using paid sick leave for one of the other purposes and is working remotely.)

All employers with fewer than 500 employees in the U.S. had an obligation to put up a poster informing all employees of this new FFCRA leave (or, if their employees were on furlough, leave, or working remotely, emailed or otherwise mailed a copy to them) as of April 1, 2020. So, employers hoping their employees “may not hear about these two new forms of leave” are out of luck.

Also, remember that health care providers and first responders do not qualify for leave under the FFCRA (and employers with a total of fewer than 50 employees may claim an exemption from this new law for specific employees who request leave if they can show that granting the leave would:

  • “result in the business’s expenses and financial obligations exceeding available business revenues and cause it to cease operating at a minimal capacity,” or
  • “entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities,” or
  • not have "sufficient workers who are able, willing, and qualified, and available at the site needed to perform the services provided by the employee or employees who are requesting leave.")

The paid leave provided under the FFCRA is capped at $511 per day and $5,110 total per employee when used for reasons i. – iii. above and is capped at $200 per day and $2,000 total per employee when used for reasons iv. and vi. and at $200 per day and $12,000 total per employee when used for reason v.

B.  “Regular” FMLA Leave

In all of the focus on the new forms of FFCRA leave, don’t forget about good ol’ fashioned “regular” FMLA leave, as COVID-19 may qualify as a serious health condition of either the employee or the employee’s parent, spouse, minor (under 18), or disabled adult child if:

i.  it results in an overnight stay in a hospital (this includes having to “wait” overnight in the Emergency Room even if the person is not ultimately admitted to the hospital); or

ii. it results in more than 3 consecutive days of incapacity from work, school, or other daily life activities PLUS at least one in-person VISIT to a health care provider and some type of continuing treatment (such as a prescription, a return visit, or some type of therapy). Being “sent home to rest” does not qualify as “continuing treatment.”

The employee or a covered family member also may have other serious health conditions which are COVID-19 related which meet one of the above criteria or which constitute a “chronic condition” (i.e., a condition which lasts more than a year and requires at least two health care provider visits per year) which makes the employee or the family member unable to work, attend school/daycare, etc. or otherwise participate in daily life activities/care for themselves.

There have been some “regular” FMLA court decisions which have held that a doctor telling an employee he/she should not go out, for instance, (pre-COVID-19) on days with a high pollen count due to asthma or even severe allergies constitutes grounds for FMLA leave. One would assume this same line of thought will apply to employees and family members who are given such instructions by their health care providers due to COVID-19. (Be mindful, however, of the “tools” available to employers relating to “regular” FMLA leave – FMLA medical certification forms and second and third medical opinions, etc. This is to remind you that an employee providing a doctor’s note saying, “I have asthma” or “my child has asthma,” etc., is not going to automatically qualify them for “regular” FMLA leave.)

Also, remember that employees are only entitled to a total of 12 weeks of combined E-FMLA leave and “regular” FMLA leave in any 12-month period. So, if an employee has already used six weeks of E-FMLA leave to care for a child whose school has been closed due to COVID-19, he/she will only have a total of six more weeks available to use as either E-FMLA or “regular” FMLA leave between now and December 31, 2020. Also, if the employee used some “regular” FMLA leave before COVID-19 swept through the world, you also would subtract any “regular” FMLA leave they have used in the past 12 months from when they are requesting to use either E-FMLA or “regular” FMLA leave relating to a COVID-19-related situation (assuming you use the “rolling look back” method for tracking “regular” FMLA leave).

Employees also must have been employed with (or at/for you with a temporary service, etc.) for a total of a year, have worked at least 1,250 hours in the immediately past 12 months prior to the date their leave begins, and work within 75 miles of 50 other employees at the time they request the leave in order to qualify for “regular” FMLA leave.

C.  Finally, there is the Americans with Disabilities Act (ADA)

The Equal Employment Opportunity Commission (EEOC) has said that COVID-19 in and of itself is not a disability under the ADA. However, as with the discussion of “chronic conditions” under the “regular” FMLA above, there are COVID-19-related conditions such as asthma or other severe, chronic respiratory illnesses which are considered a disability.

By way of reminder, employers do not have to accommodate the disabilities of employee family members. So, if an employee says their parent, spouse, or child has asthma, etc., they could only qualify for “regular” FMLA leave, not “leave as an accommodation” under the ADA, to care for them.

So, you would only need to consider the ADA if the employee him/herself has the disability.

Unlike the FMLA, “leave” is not the only available “accommodation” for a “disability” under the ADA. So, for employees who can provide medical documentation supporting a disability, you are entitled to engage in the “interactive process” in order to determine whether there are other accommodations which may enable the employee to return to work.

A final note here is employees are not entitled to work from home under the ADA or any other law. One bit of a “monster” some employers may have created, however, by rushing to equip “as many employees as possible” to work remotely is now not being able to effectively argue that allowing some of them to continue doing so is an “undue burden.” This again does not mean having to provide “permanent remote work” – as most jobs require employees to be available for some interaction at the office, and employers are not required to meet in “Zoom rooms” forever. However, conducting some meetings virtually going forward if you have been effectively doing so for the past six weeks is likely to be deemed a “reasonable accommodation” by the EEOC. So, what the ADA Amendments Act of 2008 did to the definition of “disability” in 2008, “COVID-19” has inadvertently done to the definition of a “reasonable accommodation” in 2020!

What about employees who are simply fearful?

To end on a somewhat encouraging note, there is a group of employees that have not been covered above – those who say they cannot return to work “because they don’t yet feel comfortable” “don’t trust the Government, the Mayor, the Governor, the President, you, or whomever.” They are not mentioned above because there is no such thing as “COVID-19 fear leave.” If the employee’s only basis for refusing to come to work is fear, you can end their employment.

Regarding the unemployment “return to work refusal form” (click to access), it would definitely cover this last group of employees – ending their $875/week unemployment checks. “Regular” FMLA leave and ADA accommodation leave also would be unpaid, unless the employee qualifies for some type of short- or long-term disability benefit or still has some other form of paid leave available through your company benefit plans. We do not yet definitively know if employees who say they medically cannot return to work will continue to qualify for unemployment benefits. As the (pre-COVID-19) rule was that the employee had to be medically able to work in order to qualify. We believe only the inability to work due to COVID-19 itself (not a related disability, etc.) will continue to qualify someone for unemployment benefits as a general exception to this rule, but the TN Department of Labor and Workforce Development has not yet officially spoken on this point through its unemployment FAQ or otherwise. (It has said that caring for another person due to COVID-19 does not qualify.)

In Closing

We will also close by saying that many employers to the extent they operationally are able to do so are using May as a “transition month” and not expecting all employees to report to work immediately as of a set date. Again, we realize doing so is necessary for some employers who have continued to be busy even during the COVID-19 crisis or for other operational reasons. But for those who can build in some flexibility to help your workforce regain its confidence in the ability to be around others without getting sick, there is certainly no law against doing this – as long as you do so in a non-discriminatory manner (i.e., you cannot “assume” all of your older workers are not going to want to return and so delay their return beyond others’, etc.) Some employers, for instance, are starting by returning part of their workforce to the office this week, then adding others next week, and more (or different) employees the following week, etc.

As always, if we can be of assistance in helping you think through your return-to-work policies and plans, please feel free to contact any member of the Labor & Employment Practice Group. Again, here is hoping the end of the pandemic is near. In the meantime, do not grow weary in doing good!