Across the country this summer, higher education leaders are hard at work finalizing return-to-campus plans with new safety practices to combat COVID-19, while also preparing for furloughed employees and those who have been working remotely for the last several months to return to campus. Given the ongoing risk from COVID-19, officials will likely find some employees unwilling or unable to return to their workplace.
While institutions should take steps to assuage employees’ concerns about returning, it is crucial that institutions understand the legal protections employees may have when they do refuse to return. (Notably, an institution’s employment relationship with unionized employees is governed by a collective-bargaining agreement. Accordingly, this article will not speak to unionized employees’ rights and obligations.)
- Be proactive. HR can proactively maximize employees’ willingness and ability to return to campus by clearly communicating all the ways management will keep them safe. Institutions can accomplish this with a workplace safety guide based on current guidance from the Centers for Disease Control (CDC) and federal and state workplace safety agencies, and tailored to various work units, facilities and circumstances.
- Address employees’ practical concerns. An institution’s workplace safety guide should also anticipate and offer answers to employees’ questions and concerns. For example, who will enforce an institution’s mandates that students wear masks, and may students be denied entry to class and other facilities when they refuse or forget to wear masks? In the event of a COVID diagnosis in an employee’s work unit or an outbreak on campus, will employees be paid for the time they are quarantined at home?
- Ensure employees receive protected leave. Institutions must permit employees, including those who are unwilling or unable to return to their workplace, to use any protected leave for which they are eligible under the institution’s employment policies or under any applicable state or local leave laws, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) or the Families First Coronavirus Response Act (FFCRA). Failure to honor a request for protected leave may expose an institution to a legal claim and potential liability.
Navigating this complex patchwork of old and new laws can be challenging. For example, an employee at a public institution who refuses to return because their child’s school or daycare is closed may have the right to partially paid leave for up to 12 weeks under FFCRA’s emergency expanded FMLA provision. While a similar employee at a large private institution would not have access to this FFCRA benefit, they may still have the right to leave to care for their child under certain state and local leave laws, or under their institution’s leave policies, like paid time off (PTO).
When employees request leave or telework because they fear transmitting the virus to a medically vulnerable relative in their home, or solely because they themselves are older, institutions should not summarily dismiss these requests. Instead, institutions should individually assess them, as they could still raise concerns under the ADA, the FMLA and various federal, state or local statutes. Two points to keep in mind:
- Reasonable accommodation requests require individualized assessment: Employees who are disabled or have a medical condition designated by the CDC as increasing or potentially increasing an individual’s risk from COVID-19, such as obesity (body mass index of 30% or higher), hypertension or a serious heart or chronic lung conditions, may be entitled under the ADA to reasonable accommodation, including but not limited to leave or telework. Institutions should conduct an individualized assessment of an employee’s request for an accommodation (including a request to remain out of work) and engage in the standard ADA interactive process to determine whether and what reasonable accommodation may be required. In some cases, simple solutions like enhanced PPE or increased physical distancing may effectively mitigate the employee’s health risk. But if not, institutions must consider job reassignment, telework or leave as a potential accommodation.
- It’s important to proceed with caution if termination seems to be the best action. A single article can not fully address all the legal entitlements and other considerations implicated when an employee refuses to return to the workplace. So, while an institution may ultimately have the right in certain situations to terminate an employee who refuses to return to work, a decision to terminate should only come after careful analysis and, ideally, consultation with legal counsel.
Emily P. Crowley is an employment and trial attorney at the Boston law firm Davis Malm. She represents clients in matters involving employment, contracts, indemnification, product liability and corporate disputes. She can be contacted via [email protected].