Editor’s Notebook: A Refusal To Return

Editor’s Notebook: A Refusal To Return

As restrictions ease and employers prepare to reopen doors and get back to business, how to properly respond to a worker who refuses to return.

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As states begin to lift Covid-19 restrictions and shelter-at home orders, businesses are preparing the transition from work-from-home to in-office status.

However, one issue employers will have to deal with, if they’re not already, is how to properly manage an employee who refuses – for any number of reasons – to return to the workplace.

 

It’s an understandable conundrum for both employer and employee. On the one hand, there are so many mixed messages about what the correct next steps should be in the Covid pandemic. States and local governments are still stressing PPPs, 6-foot social distancing and continued sheltering at home practices, all the while businesses are starting to loosen restrictions and a return to some semblance of “business as usual” to support economic recovery. And without an effective medical treatment or a vaccination, some individuals question whether a return to work is worth the risk.

For a little clarity on this decidedly fuzzy workplace issue, I sought out Jennifer Markowski, an expert in the defense of employment and professional liability claims and a Partner in Freeman Mathis & Gary's Boston and Providence offices.

“Generally speaking, if an employee does not want to come to work for a generalized fear of becoming ill, it’s not a reasonable basis for the employee to say, ‘I’m not coming back to work because I’m afraid about what could happen’,” she says. “It needs to be a situation where the employee feels there’s an imminent likelihood they will get sick if they come back to work, meaning someone there is sick or there’s a greater likelihood of getting sick.”

An employer, according to Markowski, dealing with an employee who is refusing to come back to work does have the ability to discipline that employee and – absent a specific circumstance and a real substantial concern about contracting the Coronavirus – the employer can require that employee to return to the workplace.

There is a caveat, though, Markowski warns. “[The pandemic] is a circumstance none of us have really dealt with before and these are unusual times,” she says. There are certainly circumstances where an employer has an employee who has an underlying medical condition or issue that [places them] at a heightened risk or a heightened concern over returning to work.”

According to the Centers for Disease Control and Prevention (CDC), older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. Those risk factors, according to the CDC, include: moderate-to-severe asthma; chronic lung disease; diabetes; serious hear conditions; and chronic kidney disease being treated with dialysis.

Therefore, employers are advised to deal with refusal-to-return-to-work issues on an individual, case-by-case basis and not with a blanket policy. “If someone raises a concern and has an issue, then you want to explore that further with the employee,” she says. “Think about if there is an ADA (Americans with Disabilities Act) accommodation … if there is something else going on [with the individual] or is it just a generalized concern.”

Mike Zawacki is Snow Magazine editor and the host of The Snow Magazine Podcast. You can reach him at mzawacki@gie.net.