COVID-19 and Employee Rights for Returning to Work

By Dave Clifton
Content Strategy Specialist
SpaceIQ

The social lockdown may have lifted in your area and workplaces are opening again. Effective immediately, you can now recall staff and resume operations in-house. The question is, are your employees ready to come back to work? Can they refuse to come back? COVID-19 and employee rights are a situation employers need to proactively think about before they become a matter of urgency.

The coronavirus pandemic has caused economic, social, and emotional trauma for a majority of the population—not to mention the health concerns of those stricken with the virus. There are understandable employee fears on returning to the workplace, and it’s important for employers to be empathetic.

Do employees need to return to work?

Ask yourself if your employees need to come back to the workplace right away. Many Fortune 500 companies aren’t in any hurry to bring their employees back in house, and some are still pondering if they ever will. If your team can telecommute effectively, a delayed return to work may not be a bad idea. Here’s why:

• As employees settle into telecommuting, a delayed return to work avoids disruption
• Denser workplaces may maintain remote work policies to avoid a COVID-19 outbreak
• Some employers actually save on costs thanks to telecommuting
• Many companies are compiling data and projections to weigh in-house vs. telecommuting

Instead of a hasty return to normal, take a moment to consider if that’s the right move for your company. A new employer workplace plan that maintains telecommuting policies could avoid drawing the ire of employees who aren’t ready to risk their health in a social environment.

The right to a safe workplace

The bottom line is that employers that reopen the workplace can call employees back to work and aren’t required to provide special accommodations for employees who don’t want to return. That said, employees do have the right to a safe workplace. To avoid liability and legal action, employers need to take good faith steps to give employees peace of mind. This includes:

• Provide and/or mandate appropriate workplace PPE, including masks
• Create safe workplace policies for cleaning, hand washing, and sanitization
• Offer resources and communication for illness reporting among employees
• Implement social distancing and contactless interaction policies at work

So long as you provide a safe workplace and take steps to validate the safety of returning employees, you’re under no obligation to provide alternative work options.

The right to be informed about confirmed COVID-19 cases

If there’s a confirmed case of COVID-19 among your staff after you return to work, employers have an obligation to inform employees who may have been exposed. This is a delicate situation, since the employee with COVID-19 also has the right to privacy under the Americans with Disabilities Act (ADA).

Inform individuals of possible exposure. Then, close down the affected area and clean it thoroughly to disinfect it. It’s also advisable to implement a contact tracing program—ask individuals to report positive or negative tests, so you can recognize spread patterns and keep it controlled.

The right to self-quarantine

There are some cases when employees would be able to refuse a return to work. The most common case would be for immunocompromised individuals who maintain a self-quarantine recommendation from a physician. These “high risk” individuals may be susceptible to COVID-19 even with safeguards in place. So long as a physician maintains that they self-quarantine that person would be able to defer a return to work.

These situations tread into FMLA vs. FFCRA, and it’s up to employers and their HR departments to determine how to classify this delayed return to work. The best case scenario would be to create or maintain a remote work position for these individuals, which would allow them to maintain their employment without sacrificing their health.

The threat of COVID-19 isn’t gone

Keep workers’ right at the center of your purview as you consider a return to work. While it’s well within the rights of employers to reopen and restart operations, they need to do so responsibly to avoid liability. It’s worth considering if now is the best time to recall employees to work and, if it is, how to do it in a frictionless way. Respect employee concerns. Make changes to the workplace. Accommodate where necessary.

Coronavirus hasn’t magically disappeared. Many projections predict a resurgence at worst and continued caution at best. The only way to avoid another shutdown and all the disruptions that come with it is to be responsible in how you open the workplace.

Keep reading: Coronavirus Resources for Employees