Addressing Employee Fears: Legal Implications When Employees Refuse to Return to Work

As stay-at-home orders lift in Minnesota and across the country, employers preparing to open their workplaces may face resistance from employees afraid to return to work. This legal alert highlights key legal points for employers to consider in this situation, incorporating the Equal Employment Opportunity Commission's ("EEOC") latest guidance on the Americans with Disabilities Act ("ADA").

Start With A Conversation With The Employee: Identify All the Ways In Which the Employer Has Followed Workplace Safety Guidance from the CDC, OSHA, and State and Local Authorities.

The number one thing employers can do to assuage employee fears is to assure employees that they are taking reasonable measures to keep employees safe and to reduce the risk of COVID-19 transmission in the workplace. In the ever-changing COVID-19 environment, employers should continue to stay up-to-date on public health guidance regarding COVID-19 workplace safety.

Employers should also pay attention to all industry-specific recommendations from the federal Occupational Safety and Health Agency (OSHA), as well as follow any state or local guidelines for reopening. OSHA and CDC safety standards may vary based upon the industry, OSHA's designated risk exposure level for the business, and whether the business is in a "critical sector."

Minnesota currently requires non-critical businesses to create a "COVID-19 Preparedness Plan" before reopening to comply with certain workplace protocols and protections.

Additional Resources:

• CDC: Interim Guidance for Businesses and Employers
• MN Department of Health: Businesses and Employers: COVID-19
• OSHA: COVID-19 Safety and Health Topic Center
• MN Department of Labor and Industry: COVID-19 Resources
• MN Department of Employment and Economic Development: Guidance on Safely Reopening Minnesota Businesses, Industry Guidance
• MN Department of Labor and Industry: Employer Preparedness Plan Template and Instructions
• MN Department of Labor and Industry: Employer Preparedness Plan Checklist

Takeaway: Employers should ensure their workplaces comply with the complex framework of federal, state and local COVID-19-related workplace safety guidance. Workplace safety is not a one-size-fits-all solution–the recommended safety measures will vary based on a number of factors, including industry and sector. If an employee is afraid to come to work, the employer should start with a conversation highlighting the workplace safety measures implemented to protect the employee and discussing specific concerns that the employee may have about the workplace.

Under OSHA, An Employee's Refusal To Work Is Not Protected Based On A Generalized Fear Of Contracting COVID-19.

A generalized fear of returning to work due to the COVID-19 pandemic, with nothing more, is not enough to excuse an employee from work. However, OSHA does protect employees from discrimination or retaliation for refusing to work if:

• The employee has a good faith belief that an imminent danger exists and that belief has been communicated to the employer;
• A reasonable person would agree that there is a real danger of death or serious injury; and,
• There is no time to correct the hazard through regular enforcement channels such as an OSHA inspection.

This inquiry is very fact-specific, and will focus on imminence of the danger under all of the circumstances and the reasonableness of the employee's belief.
 

Takeaway: After reviewing with the employee all measures taken to follow the CDC's and OSHA's recommendations for the workplace, employers should assess whether the employee has a reasonable and specific workplace safety concern and whether there are additional safety measures that could be implemented to address it. In addition to considering how to legally handle an employee's refusal to work, employers may want to also consider goals they have for employee retention when managing employees who have a genuine fear of contracting COVID-19 in the workplace.

Maslon's Labor and Employment Group is available to help you assess whether an employee's concern is reasonable and whether additional safety measures could be taken. We can work with you to identify creative ways to maintain a productive workforce during this time.

Employers Cannot Discipline or Retaliate Against Employees Who Voice Concern Over Working Conditions Related To COVID-19.

The Federal and Minnesota OSH Acts prohibit employers from taking adverse action against employees who have a reasonable belief their workplace is not safe and make a good faith complaint. A reasonable belief means that under the circumstances, a reasonable person would believe they are at risk. Minnesota Governor Walz, in Executive Order 20-54, emphasized that employees are protected from retaliation and discrimination for communicating, orally or in writing, with management personnel about occupational safety or health matters related to COVID-19. According to the Order, this encompasses more than complaints, it also includes employees just asking questions or expressing concerns.

Additionally, the NLRA protects employees, even non-union employees, who engage in "concerted activity for mutual aid or protection." Thus, an employer may be restricted in disciplining or discharging employees who are acting together to protest working conditions. For instance, if two employees reasonably refuse to work because there is insufficient legally-required personal protective equipment, indicating that they are acting on behalf of themselves and others, generally an employer may not discipline the employees.

Takeaway: Employees who are afraid to return to work have a right to ask questions and complain about perceived safety issues in their workplace. However, this fear must be reasonable in order to trigger any legal protections against discipline or discharge for refusing to work.

Employees May be Entitled to Reasonable Accommodations Under the Americans with Disabilities Act (ADA) and State Law.

An employee with a disability may be entitled to a reasonable accommodation under the ADA or parallel state laws, such as the Minnesota Human Rights Act (MHRA). A generalized fear does not amount to a disability under the ADA (or state laws such as the MHRA). Keep in mind though that a fear of COVID-19 in the workplace might be a symptom of a covered disability, such as an anxiety disorder.

The EEOC has issued specific guidance to address employees who have one of the medical conditions that the CDC says may put the individual at a higher risk for severe illness from COVID-19. Employers should continue to monitor guidance from the CDC, state and local health departments, and state or local stay-at-home orders for guidance on the medical conditions that may place individuals at a higher risk for severe illness from COVID-19.

Additional Resources:

• EEOC Guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
• CDC Guidance: People Who Are at Higher Risk for Severe Illness

For a reasonable accommodation under the ADA (or MHRA), employees must first request a reasonable accommodation:

An employer's duty to provide a reasonable accommodation under the ADA is triggered by an employee request for a reasonable accommodation:

• An employee or a third party, such as the employee's doctor, must inform the employer that the employee needs a change related to a medical condition.
• The employee need not use the term "reasonable accommodation" or reference the ADA.
• The request for an accommodation can be made orally or in writing.

There are no magic words required to request an accommodation. If an employee requests to work from home, or to take a leave of absence, and the employee informs the employer that they have a medical condition that places them at higher risk for severe illness from COVID-19, that is likely enough to trigger the employer's obligation to begin the accommodation request process. (Note: in some circumstances, such employees may be eligible for two weeks of Emergency Paid Sick Leave under the FFCRA. For example, if the employee has also been advised by a health care provider to self-quarantine due to concerns related to COVID-19.)

If an employee has a medical condition that places them at higher risk for severe illness if they get COVID-19, but the employee does not request an accommodation, the employer does not have to take any action. The EEOC has made clear that employers are prohibited from excluding these employees from the workplace or taking any other adverse action because the employee has a medical condition that could put them at higher risk of severe illness from COVID-19 – unless the employee's disability is a "direct threat" to the employee's health that cannot be eliminated or reduced by a reasonable accommodation.

A "direct threat" is a high standard that requires individualized assessment of the employee's medical condition, objective, and medical evidence regarding the severity, likelihood, and risk of potential harm. If an employer determines that the employee's disability does pose a "direct threat" to the employee's safety, the employer needs to then consider whether there is a reasonable accommodation (absent undue hardship) that can be provided to reduce the risk to the employee so that it would be safe for the employee to return to the workplace.

Takeaway: It is up to an employee with a disability to request a reasonable accommodation due to a medical condition that places them at higher risk for severe illness if they get COVID-19. Employers should be cautious in taking any action that would exclude or adversely impact employees they expect are at higher risk for serious illness due to COVID-19.

Maslon's Labor and Employment group is available to counsel you through return to work accommodation requests and can help identify what accommodations may be available for employees.

Once an employee requests a reasonable accommodation, an employer can engage in an "interactive process" with the employee.

An interactive process means an employer may ask questions and/or request medical documentation to determine whether the individual has a disability and if there is a reasonable accommodation that can be provided without undue hardship.

Questions may include:

• how the requested accommodation will effectively address the issue;
• whether another form of accommodation could effectively address the issue; and
• how a proposed accommodation will enable the employee to continue performing the essential functions of the employee's position.

Because the COVID-19 pandemic has placed stress on the healthcare system, employers can elect to provide an accommodation on a temporary basis pending appropriate medical documentation. The accommodation may then be reconsidered upon receipt of medical documentation.

As with any ADA situation, an employer does not need to provide the requested accommodation if an alternative can effectively address the limitation. The EEOC has identified some potential accommodations:

Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to all employees returning to the workplace.

Additional or enhanced protective measures like:

• Erecting protective barriers between the employee with a disability and coworkers and the public;
• Increasing space between the employee with a disability and others; or
• Moving the location where the employee works within the workplace to increase social distancing.
• Eliminating or substituting "marginal" job functions.
• Modifying work schedules to decrease contact with coworkers or the public when working or commuting.

The EEOC refers employers to the Job Accommodation Network website for other possible accommodations.

Takeaway: The EEOC advises employers and employees with disabilities to be creative and flexible to identify effective reasonable accommodations based upon the employee's specific job duties and the workplace itself.

We Can Help

Please contact Maslon's Labor & Employment Group if you have questions related to returning to work in the midst of the global COVID-19 pandemic.