EMPLOYMENT LAW NEWS

Returning to Work: Employee Fears, ADA Concerns, Mask Requirements

By Kris Janisch
Published June 23, 2020

Returning to Work: Employee Fears, ADA Concerns, Mask Requirements

We recap our recent webinar, Back to Business: Top Employer Questions in a COVID-19 World, with Kevin Mosher, partner at Thompson Coe and founder of myHRgenius.

COVID return to work webinarWhat concerns do employers have as the nation begins to reopen during the coronavirus pandemic? Our recent webinar, Back to Business: Top Employer Questions in a COVID-19 World, answered questions from employers regarding employee fears of returning to work, the Americans with Disabilities Act (ADA), mask requirements and more.

Held June 17, the webinar featured guest presenter Kevin Mosher, partner at Thompson Coe and founder of myHRgenius. He responded to submitted questions, as well as those asked live during the webinar.

Check out the full recording of the webinar.

Below, we’ll examine some of the more common questions employers have about reopening as COVID-19 continues to create challenges for businesses, including:

  • Employees hesitant or refusing to return to work
  • ADA considerations
  • Families First Coronavirus Response Act (FFCRA)
  • Legality of making employees wear masks

Employees Refusing to Return to Work

As employees are asked to return to work, some companies have faced pushback from employees based on a variety of factors:

  • Fear of an unsafe work environment
  • Enjoying enhanced unemployment benefits
  • Medical reasons

In terms of a workplace being unsafe because of COVID-19, the Occupational Safety and Health Administration (OSHA) does not consider the potential presence of the coronavirus a hazard, Mosher said. It’s not likely simply being afraid of contracting the virus would constitute a legitimate reason to refuse to come to work.

However, should an employer let a worker who tested positive for COVID-19 continue to work, “I think at that point there would be some protections,” Mosher said, adding that most companies are being much more cautious about workplace safety and such an instance would be rare.

As for employees who are enjoying their enhanced unemployment benefits, Mosher said he anticipates that being less of a problem for employers once they run out later this summer. Again, however, it would not be a justifiable reason for refusing to return to work.

Lastly, if an employee has an underlying medical condition that would make them more susceptible to COVID-19, employers will have to ask more questions of the employee and determine whether they should return to the workplace. Which brings us to…

ADA Considerations

If a legitimately high-risk employee refuses to return to work, he or she may be entitled to accommodation, Mosher said.

Still, “all high-risk reasons are not the same,” he said, and employers should try to get an understanding of the medical issue and decide on a proper course of action. And having a high-risk spouse or parent wouldn’t be covered under the ADA or FFCRA.

Meanwhile, employers are allowed to send home employees who exhibit coronavirus-related symptoms and can request that an employee be tested. Temperature tests are also allowed under federal guidelines.

Also, should an employee contract COVID-19, an employer would not likely be liable, because it would be hard to prove where the worker contracted the disease. Mosher reminded employers that they should not divulge which employees have tested positive for COVID-19.

FFCRA

Paid Leave Laws in Response to the CoronavirusNoting that federal officials have had to issue additional guidance about the FFCRA several times, Mosher acknowledged it’s “not a well-written law.”

But as employees use the emergency paid sick leave and family and medical leave, employers who want to be reimbursed on payroll taxes should ensure they’re compliant with the FFCRA. That means checking on the reasons employees are using the paid leave and following the proper documentation processes.

As a reminder, here’s how the FFCRA works.

Also, Mosher noted that the FFCRA could portend future federal paid leave legislation.

Wearing Masks

Finally, many webinar attendees asked about masks.

Mosher said employers should consult with local laws, which may require employees to wear masks. Most importantly, however, employers are allowed to require employees to wear masks.

“That’s absolutely legitimate,” Mosher said.

A mask could be considered safety equipment, and employees who refuse to wear one are insubordinate.

“If you’re not going to wear a mask, I don’t have a job for you,” Mosher said.

But what if an employee has asthma? If a worker has a legitimate medical issue, employers should talk to the employee and determine if other accommodations can be made.

Related: OSHA Issues Guidance on Mask-Wearing in the Workplace

Employers need not rush to change employee handbooks to include masks in dress code requirements. “I don’t think it’s legally necessary,” Mosher said.

Conclusion

Be sure to check out the entire webinar for more information about the employment law impacts of employees returning to work.

Other matters covered in the webinar but not discussed here include:

  • What if the employee still can’t find daycare after 12 weeks of FFCRA?
  • My employee tested positive for COVID. What are my next steps?
  • Do I need to close a site if an employee tests positive?

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.

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