As businesses across the country are beginning to reopen and/or are increasing staffing levels as stay-at-home orders are lifted, some retailers are finding that certain employees are refusing or resisting the calls to return to work. Some employees are fearful to return due to health and safety concerns, some have childcare issues, and some may prefer receiving unemployment compensation in favor of their former regular wage rates.
Before Returning Employees to Work
Before addressing refusals to return to work, it’s important to focus on the steps employers should consider taking when recalling employees to work in the first place. Here are some potential steps employers may want to take.
• Give employees a written notice of the company’s expectations concerning their return to work.
Consider providing details regarding employees’ returns to eliminate confusion and ensure expectations are clear. For example, the notice can outline the date of return, any changes to employees’ work schedules or pay rates, information regarding steps the company is taking to ensure employee and customer safety and any upcoming training on those new safety protocols/ and procedures, guidelines for checking-in on an employee’s first day back, among other information.
The notice can also provide a statement that, if an employee will not or cannot return to work, the employee must notify the employer with the reason.
• Implement safety training programs.
The Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and many other agencies have a plethora of resources available for review outlining workplace preparation and employee safety training.
Interactive training, which engages employees and encourages them to ask and answer questions, can be very effective in ensuring understanding of the employee’s role to foster a safe working environment. Such training should include sign-in sheets or a way to document attendance.
Employers may also want to consider reminding employees about the company’s open-door policies (and anti-retaliation policies) to encourage reporting of any safety concerns or issues. Finally, employers may want to let employees know that safety procedures may change as circumstances evolve, so employees remember that they may need to remain flexible.
What to Do About Refusals to Return to Work
A refusal to return to work is typically considered a resignation and, unless an exception applies, the employee will no longer be available for unemployment benefits (assuming that employee was currently receiving them). In the typical case, employers would simply follow their procedures for handling resignations, which may include, for example, paying out accrued but unused paid time off (PTO) and sending out a notice under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
However, depending upon the employee’s reason for refusing to return to work, considering the refusal to be a resignation may have serious legal consequences.
Here are some reasons employees may refuse to return to work that should trigger additional analysis and dialogue between the employer and employee.
• The employee lives in an area that remains subject to a quarantine or stay-at-home order. In these situations, employers may want to consider if the employee is capable of returning to the workplace, which may depend on factors outside the employee’s control such as public transportation.
• The employee objects to the safety procedures and requirements on personal protective equipment (PPE). For example, if the employee has a latex allergy and the company requires use of latex gloves as part of its safety protocols, the employee might request an accommodation under the Americans with Disabilities Act (ADA).
An employee also might have a religious objection or request an accommodation under Title VII of the Civil Rights Act of 1964 if required to wear a mask. In addition, employees may have privacy objections to certain kinds of mandatory tests and screenings.
• Employees may have other issues that implicate the ADA. For example, an employee may be considered high risk or may live with someone who is high risk.
• Employees may have childcare issues, which, depending upon the size of the employer, may trigger obligations under the Families First Coronavirus Response Act (FFCRA).
Section 7 of the National Labor Relations Act (NLRA), which protects the rights of employees to concertedly engage in protests, including work stoppages, over what employees believe to be unsafe or unhealthy working conditions applies to nonunionized retailers.
In addition, unionized retailers, which likely have the protection of a no-strike agreement in their collective bargaining agreements, will also want to consider Section 502 of the NLRA, which provides that it is not a strike for unionized employees to refuse to work if they have a “good faith belief” supported by “ascertainable” and “objective evidence” that there is an “abnormally dangerous” working condition.
Also, while a generalized fear of contracting COVID-19 is not usually enough to support a refusal to return to work, OSHA protects workers’ right to refuse an assignment involving “imminent danger” if certain conditions are met. Moreover, keep in mind that retaliating against individuals who raise safety concerns—not just with respect to COVID-19—is unlawful under multiple federal and state laws. There are many other potential issues that unionized retailers will want to consider with regard to returning employees to work.
So, what is a retailer to do? Tread carefully.
Before considering a refusal to return to work to be a resignation or discharging an employee on the spot, employees may want to evaluate each refusal to work on a case-by-case, individualized basis to ensure the company does not run afoul of any federal, state, or local restrictions or obligations.
Other tips for reducing or minimizing issues include working to eliminate fear, educating employees (for example by instituting training or posting signage), adopting policies and protocols for cleaning and disinfecting work areas, and implementing physical distancing, temperature and symptom screening, shift rotation, and reduced travel policies at work.
Kelly Hughes is a shareholder in Ogletree Deakins’ Charlotte office and the co-chair of the firm’s retail industry group.