When Is Fear a Protected Reason for Not Coming to Work?

​When workers are scared to report to the worksite during the pandemic, an important question is why they are afraid: a generalized fear versus a specific, protected reason.

Despite an employer's best efforts to create a safe work environment, some employees may refuse to come to worksites based on nothing beyond a general fear of rejoining public life while the pandemic continues.

"If a worker is scared to come in, the employer should begin by understanding the reason for the fear," said Isaac Mamaysky, an attorney with Potomac Law Group in New York City. "Is the worker scared to come in because of a disability? If yes, then the question becomes whether the employee can perform the essential functions of the job from home. If the answer to that question is also yes, then the employee should be working from home."

"Keeping all associates safe is paramount and should be the guidepost for decisions surrounding returning to work[places]," said Tara Wolckenhauer, division vice president of human resources at ADP in Florham Park, N.J. "Employers should prepare for heightened levels of general anxiety as workers return to their worksites and adjust to a new normal," she said.

"There will certainly be roles that are more easily executed remotely, while others are required to be onsite," Wolckenhauer stated. "Reasoning on why some roles are better suited for specific settings should be presented in a genuine, authentic way."

After decisions about who can and can't work remotely are made and communicated, disciplining or firing employees who refuse to come in out of a generalized fear likely is permissible in many circumstances, said Carolyn Rashby, an attorney with Covington & Burling LLP in San Francisco.

Employers usually are not required to allow employees to continue to work remotely if the employer can demonstrate that it has complied with all appropriate measures to reduce the risk of exposure in the workplace, she added. However, there are exceptions to this general rule.

OSH Act

Erin Schilling, an attorney with Polsinelli in Kansas City, Mo., noted that employers should abide by the Occupational Safety and Health (OSH) Act's general duty clause.

Under this clause, employers must keep their places of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.

Schilling recommended employers consider steps to address potential workplace hazards, including:

• Screening employees and visitors for fever.
• Using social-distancing techniques such as staggered shifts, reworked use of space, restricted in-person meetings and limited customer volume.
• Offering personal protective equipment (PPE) that is consistent with Occupational Safety and Health Administration guidance.
• Reviewing cleaning techniques and considering additional cleaning measures the employer could implement.
• Adopting a flexible work-from-home policy.

At Walker Sands, a business-to-business marketing firm, once the office is reopened, "We expect that some people will want to be in the office, some may only be comfortable coming in a few days and a third group may work remotely for the rest of the year," said Chester Lantin, the firm's HR director in Chicago. "We're expecting that, and we're OK with it."

NLRA

Rashby cautioned that employees might have rights under the National Labor Relations Act's (NLRA's) "protected concerted activity" protections for employees with respect to the terms and conditions of their work. She noted that whether an employer can be held liable for an employee's exposure to the coronavirus in the workplace is uncertain.

The key in determining if an activity "is potentially covered under the NLRA is whether two or more employees are joining together to speak out or otherwise protest a practice or action," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "Single-employee action typically is not covered" by the NLRA.

ADA

Under the Americans with Disabilities Act (ADA) and state equal employment opportunity laws, if an employee is concerned about returning because he or she is at a higher risk of severe illness from COVID-19 than others, the employee likely has a disability and is protected, noted Christopher Durham, an attorney with Duane Morris in Philadelphia.

If that's the case, the employer should discuss possible accommodations with the employee to address his or her concerns, he said. Accommodations might include extra social-distancing measures in the workplace or a work-from-home arrangement.

When an employee has anxiety related to contracting the coronavirus, the employee nonetheless might have a disability requiring reasonable accommodation if the anxiety rises to the level of a disability under the ADA or state law, Durham said.

Employees also may be concerned about returning to work if they live with higher-risk individuals. Such a living arrangement likely does not afford the employee a right to reasonable accommodation under the ADA or state law, he noted. But there might be an associational disability-discrimination claim if the employer treats employees in these circumstances less favorably than others with respect to return to the worksite.

Even if there is no such claim, many employers often are trying to accommodate workers in such circumstances, according to Eve Klein, an attorney with Duane Morris in New York City.

[SHRM Resource Spotlight: Coronavirus and COVID-19]

Other Discrimination Claims

Schilling said that if some workers are permitted to telecommute and others aren't, there is a risk of potential discrimination or retaliation claims. An employer should make sure it has a legitimate business reason for its decision, she said.

Document, based on operational needs, which categories of employees are prioritized for return to the workplace to ensure consistency and reduce the risk of bias claims, said Lindsay Burke, an attorney with Covington Burling LLP in Washington, D.C.

"U.S. employers have the prerogative to determine the worksite of any of their positions, just as they have the discretion to adjust job duties and salaries, unless these issues are contractually agreed," she said.

"Once governmental orders are lifted and employees are permitted to be in the workplace, employers may continue to have operational reasons for treating essential and noncritical workers differently," Burke added.

FFCRA

Employers also should keep in mind their obligations to comply with the Families First Coronavirus Response Act (FFCRA), said Jason Habinsky, an attorney with Haynes and Boone in New York City.

For example, an employee may be taking care of a sick relative or providing care for a child out of school and therefore may be protected.