Businesses with non-essential employees are reopening or bringing staff back into the workplace. Ideally, this draws upon guidance from local and state governments, as well as recommendations from Occupational Safety Health Administration, the Centers for Disease Control and other federal agencies. Nevertheless, some employees may not be ready to return because of continued fear of COVID-19 exposure. Or there may be a new surge that is cause for their apprehension.
What can be done?
Employees can typically require non-high-risk employees to come in, particularly if there is no evidence of an outbreak in the workplace. They must employ precautions, including new training regarding the virus, protocols for illness and outfitting the space in a way that minimizes contact between employees. Employers serve their best interests by proceeding with caution before insisting the worker come in. There are local, state and federal laws regarding employee leave also to consider. Nevertheless, employers are likely within their rights to terminate the employee unless the Americans with Disabilities Act (ADA) or other local equivalents protect the worker.
Alternatives to termination
Termination can mean the loss of valuable employees, particularly with vaccination numbers continuing to climb. The roles of employees and the workplace setting will vary, but alternative solutions that wait out the pandemic can involve:
- Reasonable accommodation: It may be best to continue the arrangement if the worker continued to be productive while telecommuting. They can then revisit in-person work at a later date.
- Leave of absence: If telecommuting is not an option, the Equal Employment Opportunity Commission (EEOC) that leave because of a disability is second to last resort (termination is the final one).
- Discretionary leave: An employee may have unique circumstances not covered by employment laws, but employers should be cautious in granting these, particularly if perceived as unfair by others with the same job required to work on-site.
Working together
We live in unprecedented times. Generally, businesses and their workers need to work together to get through them. Employees should not take advantage of employers’ goodwill, and employers need to be empathetic or flexible in letting workers return to the new normal at their own pace if it does not affect the business’s ability to function. With the vaccines ramping up across the country, it is now hopefully only a matter of a little more time.
