Can Workers Refuse Coming Back to Work?
Summary of Article in CEA
Here we go with the Pandemic blowback..... but clearly this post's subject will be encountered by most of our local businesses. ......Can a Worker Refuse Coming Back to Work?
As you have guessed, there is no simple answer. That would be way to easy. So let's take this one step at a time.
If your employees aren't comimg back to work.....you need to ask them Why? and document their replies. If they don't provide any answer, this makes it fairly simple for you as the employer. The would be voluntarily separating themselves from your employment ( or terminating themselves, refer to your Employee Manual.)
If they states they have a health related issue impacting their ability to return, you need to check if they are a protected class under ADA, FEHA, Child Care issues or your local Covid related sick leave. Depending upon what you are told, you might be required to grant a leave of absence or another 'reasonable' accommodation.
Some might state they are 'afraid' to return to work. Clearly, the 'fear' of returning to work, getting Covid and briging it home is on the minds of many people. This is where YOU must make sure your business is in compliance with the Federal, State and local laws concerning your workplace and Covid guiidelines. After making sure on these issues, you can issue a statement which clearly sets in writing that work is available and 'all' actions are being taken to meet the Covid/health guidelines.
If they state they are 'immunocompromised'....a fancy word for having an immunity systems which has been impaired, this is where YOU must take action as well. Go through the ADA/FEHA interactive process to determine what accommodations are needed to allow them to return to work safely. You can request a Doctor's note which states limitations and proposed accommodations. Some of these accommodations could include a special mask, remote work, leave of absensce, extra partioning....the choices are almost limitless.
You are also allowed to take your employees temperatures as a part of your company established Covid Action Plan. This has been approved by the EEOC "IF" your policy mandates the taking of termperatures. Remember, everyone must be treated equally on any processes you mandate at work. Just make sure you are keeping those records private. Along this line, another item to remember is Cal/OSHA's Emergency Temporary Regulation does not allow employers can mandate Covid 19 testing as a condition to return to work, but you can request a release from a Doctor to clear someone to come back to work.
The last item to consider.....Will Our Company Mandate Vaccinations? This is determined by your type of business and your company policy. Some examples are......A health care facility might mandate vaccinations for all employees due to the intense responsibility from expsore to others. Conversely, if you are purely an office type of business where you don't meet with the public, you might not want to 'mandate' vaccinations and keep the choice as voluntary for all. There are too many considerations for us to review in this publication concerning the ramifications of requiring/mandating vaccinations.....we will cover that at another time....
The California Employers Association published an article of which upon this post was based. You can access it at: Refusing to Come Back To Work
If you need additional information or publications, feel free to contact us ......I WILL HELP!