What happens when employees refuse to return to the office over concerns of the pandemic

Posted at 6:24 PM, Jun 19, 2020

Many businesses across the country have been working to safely reopen their offices. From disinfecting desks to implementing social distancing guidelines, some employers are learning it still might not be enough to bring people back to their desks.

"There are people who have fears of returning back to work due to safety concerns. Maybe they might be at a higher risk due to a compromised immune system or someone else within their family so they have some concerns about returning. Some employees don’t want to return-- and some employees want to continue to work from home when they were able to do it during this period of COVID," says Amber Clayton, the Knowledge Center Director at the Society for Human Resource Management.

Clayton says some reasons for an employee refusing to come back to the office are protected under law. For example, if the employee, or someone the employee lives with, has underlying health conditions that would make them at higher risk for being affected by COVID-19, or they're unable to return due to childcare reasons. Employment lawyers like Ruthie Goodboe agree, citing OSHA and the National Labor Relations Act.

"An analysis needs to be done by the employer to determine, ‘Am I able to separate that employee if they’re unwilling to return to work, am I required to do or take certain steps’ and then if I do that and they still don’t come to work, do I have a right to separate them," said Goodboe, an employment lawyer with Ogletree, Deakins, Nash Smoak & Stewart.

Employers must also make sure they're following regulations under the Americans with Disabilities Act and Family Medical Leave Act.

"If employers are following guidance from the CDC and from OSHA and limiting their exposure in the workplace, that should be satisfactory. However, there may be times that someone may be infected in the workplace and that employer may be held liable depending on the situation," Clayton said.

But for those employees who simply have a general fear of COVID and despite any accommodations the business is taking, still don't feel comfortable coming back to work, it may be a breaking point.

"There's no federal or state laws that I’m aware of that requires an employer to provide leave based on someone’s fear that they may contract some type of disease whether it’s COVID-19 or something else. But employers should, through their policies and practices, determine what they’ve done in the past and ensure they’re being consistent and fair in their policies," says Clayton.

Perhaps the biggest key for employers and employees in getting through this is communication.

"Stay calm, take a breath and make sure you’re communicating well with your employees to get all of the information. Do you understand what all of their concerns are? Because once their concerns are understood, it may be easy to resolve," says Goodboe.

Employees and employers could ultimately find a mutually agreeable working situation to keep everyone comfortable and healthy at work.