Kevin Mosher — partner at Thompson Coe and founder of myHRgenius — outlines a few concerns for employers as the country continues to reopen.
Employees are returning to work. Though not everyone left (and some are not returning any time soon), in most areas in the country, many workers this June are returning to workplaces that have been unoccupied for months.
Come workers, come workers’ issues. In the next GovDocs webinar — Back to Business: Top Employer Questions in a COVID-19 World — we examine many of the scenarios employers may face over the next year as workers return to the workplace. Here are but a few of the questions employers are already facing and how this HR lawyer approaches them.
Is it legal to require employees to wear masks?
Perhaps it should not be so surprising that many employees think they have a legal right to come to work and refuse to wear a mask — even if it is required by their employer for safety reasons.
These employees are mistaken.
In general, employers can require employees to wear protective clothing or equipment as a condition of working for the company. Aside from when they single out or discriminate based on someone’s protected characteristic, dress codes are widely considered legal.
Requiring employees to wear masks is more than a dress code requirement — it is a safety requirement essential to the performance of their jobs. As such, requiring all employees to wear masks is not only legal, but soundly legitimate, sensical, and in some states or cities, currently required for safety reasons.
Can we discipline employees who refuse to return to work?
Many employers are also dealing with employees who do not want to return to work. Whether it’s because the employee values the federally enhanced unemployment benefits, fears they may contract COVID-19, or is just not that motivated to return to work during the summer months, many employees are expressing disinterest in returning to their jobs.
So, what to do?
Some employees may have a legal excuse not to return to work. Based on the reason provided for their need for continued leave, employees may qualify for additional leave or another accommodation under the:
Families First Coronavirus Response Act (FFCRA);
Family and Medical Leave Act (FMLA); or
Americans with Disabilities Act (ADA).
Employers will want to be careful of these situations.
However, for many employees, their refusal to work is not legally protected. Being scared of contracting or spreading COVID-19 is not enough. Unless the employee can establish that their workplace is hazardous under Occupational Safety and Health Administration (OSHA) standards, they cannot refuse to work based on safety concerns.
PULL: Employers that are implementing Centers for Disease Control and Prevention (CDC) and state health department guidelines for cleaning and social distancing and providing employees and customers/guests with masks and/or other personal protective gear are in all likelihood meeting their obligations under OSHA.
While some governors have issued executive orders protecting employees who complain of COVID-related safety issues, most do not protect employees who refuse to return to work because of generalized pandemic-related fears.
This is all to say that COVID-19 does not offer a blanket protection for employees who refuse to come into work. Employers should explore the reasons why an employee claims they can’t come into the workplace. But unless the employee is entitled to a legally protected leave, employees don’t have a legal right to keep their job if they refuse to work.
How can we apply the FFCRA to our existing paid leave polices?
For some employers, it will be easy to incorporate the FFCRA leave with their existing paid leave polices. For other employers — not so much.
The difference probably depends on whether you have employees in one of the states that mandates paid sick leave or paid time off, such as New York, Massachusetts, California, and so forth.
Stepping back, it is important to understand there are two buckets of paid time off created by the FFCRA:
Emergency paid sick leave, which provides up to two weeks of paid time off; and
Emergency FMLA leave, which provides up to 12 weeks off, 10 of which are paid.
It’s important to distinguish between the two, because not only do they have different triggers, but the way employers may apply their paid leave policies when providing leave under either law is different.
Let’s look at one example. The emergency paid sick leave law prohibits employers from requiring employees to use their PTO first or in lieu of the two-week entitlement under this new law. Employers commonly have policies that require employees to exhaust their company-given paid time off before they dip into other legally protected leaves of absences. That’s prohibited with the emergency paid sick leave.
However, this standard does not apply to leave taken under the emergency FMLA.
As a refresher, the new emergency FMLA law requires employers to pay employees at least two-thirds of their regular pay (up to $200 per day) when the employee is unable to work because they need to care for a child whose regular childcare is unavailable due to COVID-19. Unlike the emergency paid sick leave, employers can require employees to use their company-provided PTO concurrently with leave under the emergency FMLA. This means employers can either require employees to use full days of PTO while out on this leave, or they can require employees to use PTO to cover the one-third of the leave not covered by the emergency FMLA.
The point is that employers have a lot more flexibility in applying their PTO policy when employees take leave under the emergency FMLA than when employees take emergency paid sick leave.
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