Guidance if an Employee Chooses not to Return to Work

Here are some possible scenarios you must be prepared to recognize.

As a general rule, employees do not have a right to refuse to come to work and can be let go if they do refuse. But, there are exceptions to this rule, some of which have changed because of COVID-19. Failing to be aware of protections that may apply to an employee who will not return to work can expose your practice to possible liability. It is also important to comply with rules for informing employees of these new worker protection regulations. Be aware that federal laws and regulations typically do not preempt more generous state workplace laws, so it is important to comply with state laws that go beyond what federal law provides.

Sick leave and family leave

The Families First Coronavirus Response Act (FFCRA) expanded the eligibility rules for leave under the Family Medical Leave Act (FMLA). Until the end of 2020, employers with fewer than 500 employees must provide as much as twelve weeks of FMLA to eligible employees.

The leave rules apply to any employee who has been employed for at least 30 days and who:

  1. Is subject to a federal, state or local quarantine or isolation order related to COVID-19.
  2. Has been advised by a health care provider to self-quarantine related to COVID-19.
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  4. Is caring for an individual subject to an order described in point one or self-quarantine as described in point two.
  5. Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
  6. Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the secretaries of Labor and Treasury. 

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Employees seeking leave for reasons Nos. 1 through 3 are entitled to up to two weeks (80 hours) of paid leave at full pay, up to $511 per day.

Employees seeking leave for reasons Nos. 4 and 6 are entitled to up to two weeks (80 hours) of paid leave at two-thirds the regular rate of pay up to $200 per day.

Employees seeking leave for reason No. 5 are entitled to up to ten weeks of paid leave at two-thirds the regular rate of pay up to $200 per day.

The Internal Revenue Service (IRS) published detailed guidance on how to calculate wages for employees taking either family or sick leave under the FFRCA. Due to the complexity of the rules, the AOA recommends reviewing the guidance carefully if any of your practice's employees are taking FFRCA leave.

Small employers—fewer than 50 employees—may claim a hardship exemption from the requirement to provide paid leave for employees seeking time off due to a lack of child care. This is a very limited exemption. If you believe it might apply to your situation, see more information about the exemption on the United States Department of Labor website.

Employers may claim a tax credit for payments provided pursuant to the FFCRA. For more information, see the IRS's COVID-19-related tax credits for paid sick and paid family leave: overview.

Americans with Disabilities Act

A pre-existing condition that makes an employee especially vulnerable to COVID-19 may be entitled to protections under the Americans with Disabilities Act (ADA). Examples of such disabilities may include any compromised that causes a compromised immune system. As with any other disability, an employer is required to engage in an interactive process with the employee to determine whether there are reasonable accommodations that the employer could offer that would allow the employee to continue to perform the essential functions of his/her job. Examples of possible accommodations include telework, or temporary reassignment to a job that can be done from home if the current job can't be done from home.

Safety concerns

An individual who doesn't want to come back to work may cite safety issues as a justification for refusal. If an employee has raised valid safety concerns with you, he or she may be afforded some protections by the Occupational Safety and Health Act, which is enforced by OSHA. We advise reviewing AOA's optometry practice reactivation preparedness guide for information about providing a safe workplace during the COVID-19 pandemic. It is important to be able to demonstrate that you made good faith efforts to provide a safe workplace. Doing so will put you in a better position to respond to an OSHA complaint.

Workplace posters

Employers are already required to post notice of certain workplace laws in the workplace. The emergency legislation and rule changes adopted in response to COVID-19 have changed some of these laws. As a result, employers must update their workplace posters. We recommend using this tool published by the U.S. Department of Labor, as well as your individual state requirements.

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