If there is one word that defines this pandemic, it is fear. While we understand more about COVID-19 today than we did even a few weeks ago, including who may be more susceptible to severe complications, this pandemic still involves a dash of Russian roulette. It is therefore understandable that some employees – even perfectly healthy ones – will express reservations about returning to the workplace, especially in areas around California where cases are spiking. The situation is more complicated when an employee outright refuses to return to work, and how employers choose to respond involves walking a tightrope that balances the employer’s legitimate business needs with the employee’s state and federal rights. Indeed, as California rolls back its reopening plans, and employers face the prospect of a re-opening doppelganger, it is important for employers to understand the nuances of what may be a reoccurring trend.
Concerns About Employer’s Reopening Plans
As we have previously reported, state regulations mandate that employers use reasonable care to provide for the safety of employees and in furnishing a suitable and safe place of work. For instance, Cal-OSHA requires employers to have an Injury Illness Prevention Plan (“IIPP”) to protect employees from foreseeable workplace hazards. Cal-OSHA states most California workplaces should amend their IIPPs to address COVID-19, because it is widespread in California.
An employer that has not taken steps reasonably necessary to protect their employees’ health and safety may not discipline an employee who refuses to return to work until the employer can ensure their health and safety. Furthermore, an employer should not reopen if doing so would violate state or local order. For instance, on July 13, 2020, Governor Newsom issued a statewide order that will temporarily close many non-critical business sectors throughout California.
Fear of Contracting the Virus
Fear of contracting the virus – among healthy employees where the employer has taken adequate safety precautions – is likely an insufficient reason to refuse to return to work. In this situation, an employer may treat an employee’s refusal to return to work despite the employer’s reasonable safety efforts as an unexcused absence or possibly insubordination.
That said, the risks of developing complications from COVID-19 increase for people with certain preexisting medical conditions, such as kidney disease, heart disease, compromised immune systems, or diabetes. These individuals may be entitled to reasonable accommodations under California’s Fair Employment & Housing Act (“FEHA”) or the federal Americans with Disabilities Act (“ADA”). The same may also be true for employees with preexisting mental health conditions that make coping with the work environment more challenging during a pandemic. There is no bright-line rule in these cases, and employers must carefully address each situation on a case-by-case basis. The key will be clear lines of communication.
Be Mindful of Retaliation Claims
An employee who complains that the employer’s re-opening plans violate federal, state, or local law could trigger whistleblower protections. The same is also true if the employee refuses to work because s/he reasonably believes the work environment places them at risk of serious injury of death. Under Labor Code section 1102.5, an employer may not discriminate or retaliate against an employee for disclosing a violation of the law as long as the employee has reasonable cause to believe the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
Similarly, if a complaint is brought on behalf of a group of employees, it may qualify as “protected concerted activity” under the various labor relations statutes. In addition, an employee who relies in whole or in part on their own medical condition in a return-to-work complaint may be requesting an accommodation under the FEHA or the ADA. It would be illegal to retaliate against the employee for voicing such a complaint under those laws.
Family Care Obligations
If employees refuse to return to work due to family care obligations, they may be protected under state and federal leave laws. California’s Healthy Workplaces, Healthy Families Act of 2014 is expansive and allows employees up to one-half of their annual accrual of sick leave or PTO to care for, among others, a parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, and parent-in-law. Likewise, the Families First Coronavirus Response Act (“FFCRA”) allows an employee to use up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because of a bona-fide need to care for an individual subject to quarantine, or to care for a child under 18 whose school or child care provider is closed or unavailable for reasons related to COVID-19. In the latter situation, an employee is also entitled to an additional 10 weeks of expanded family and medical leave. This will be a particularly important issue for parents of schoolchildren whose schools offer only on-line classes in the fall. Some districts have already made that decision.
Therefore, when faced with an employee who refuses to return to work, employers must carefully consider why the employee is refusing to return. If the employee has identified a legitimate safety concern, the employer should work to address it. The employer should also consider whether the employee is entitled to an accommodation or protection under state or federal leave laws. If none of the above apply, the employer would still be wise to consult with legal counsel before taking any actions that may be construed as adverse in order to minimize the likelihood of a retaliation claim. Moreover, if the employee is covered by a collective bargaining agreement (“CBA”), the employer should carefully review the CBA to determine whether any provisions address the situation and restrict the employer’s ability to respond
These situations present new challenges. In some cases, there is no settled law on the appropriate response and employers will have to evaluate the risks associated with their decisions. We are here at LCW to help you work through your decisions.