As the economy restarts, many employers are facing the serious problem that some employees are reluctant to return to work. Some of the reluctance is driven by legitimate fears related to the coronavirus and its spread. For others, it is a matter of economics. The legal and practical issues are complex and employers must tread carefully. Retain an experienced Florida business attorney today for help. Here are a few of the legal issues that should be considered and steps to take.
Requests for Accommodation
Under the federal Americans with Disabilities Act (“ADA”), employers must consider any request from an employee for reasonable accommodations for a legitimate disability. See 42 U.S. Code §12101 et seq. The ADA prohibits discrimination against people with physical or mental disabilities in employment. This is relevant because certain employees might legitimately claim disability based on being COVID-19 “high-risk individuals.” Examples include workers who are elderly, have compromised immune systems, or serious comorbidity health factors.
A “high-risk individual” might ask for various accommodations, such as:
- Working from home
- Working in a different physical work area, which may provide more social distancing
- A modified work schedule, which might be less busy and less risky
- Something else
What Are Employer’s Obligations?
If not requested, employers do not have to provide accommodations. In other words, no blanket rules apply. Document every request made and address them individually. An employer is not required to accept all requests for accommodation. A request to work from home can be rejected if the employee’s physical presence at the place of work is an essential part of the job. A waitress, for example, must be present physically at a restaurant to serve the customers. The ADA requires some give and take. The employer can offer an alternative, if the job duties cannot be accomplished with the proposed accommodation. In our waitress example, the employer might suggest a different schedule, such as lunch shifts, which might be less risky in terms of exposure. If the employee rejects an alternative accommodation, then the employer can consider termination.
There is no obligation to grant requests to work from home, even if the work can be accomplished remotely. Certainly, there are legitimate business concerns that may preclude an employer from granting this request. Workplace safety regulations, accountability, adequate supervision, enforcing labor laws, and cyber-security are examples of these concerns..
Practical Considerations About Unemployment Benefits
Some employees are reluctant to return to work for economic reasons. To clarify, the enhanced unemployment benefits approved by Congress in the first stimulus package ($600 per week), some employees lose money by returning to work.
Meanwhile, those who are collecting unemployment benefits must periodically report job offers to Florida unemployment officials. Therefore, and employer can subtly coax an employee back to work by being direct about their return to work. Providing a specific date, time, and at a given location. This constitutes a “offering a job” as defined by the unemployment benefits regulations.
A benefit recipient who refuses a job offer can lose his or her unemployment benefits. If this happens, then the employee has no job and no unemployment benefits. When faced with this dilemma, many employees will return to work. Employers must be careful not to threaten employees with loss of unemployment benefits. Threats could lead to litigation and, in any event, termination of benefits is not within the control of an employer.
Communication and Documentation
Proper communication with returning workers is key. Some employers make the mistake of having general, vague, and exploratory conversations with their workers. So, employers must specify when and where employees are expected to return to work. Most importantly, document ALL communications. The documented communication is proof of the employer’s expectations. In short, employers should ensure expectations are clear and legitimate accommodation requests are considered. After that, employees refusing to return to work can be terminated for job abandonment.
For an Evaluation of your Business Needs Call Boyer Law Firm
With our team of experienced Florida business attorneys in Orlando, Jacksonville, and Miami, we can help guide you through the practical and legal issues discussed in this article. Call Us at (407) 574-2573 or send us a message through our secure contact form. Appointments are available only by telephone or video conference.