“Fear cuts deeper than swords.”
-George R.R. Martin, A Game of Thrones
As the plan to reopen Massachusetts enters its second phase and moves forward, employers are likely to encounter employees who are reluctant to reenter the work place. For companies whose employees have been successfully working remotely during the quarantine this question is even more likely to arise. Employers are allowed to impose non-discriminatory expectations on their employees, including that of being physically present at the employer's place of business during working hours. The general rule for 'at will' employees is that they can they can be let go at any time for any reason or for no reason at all. In sum, employers can theoretically terminate at will employees who decline to return to the workplace when their business reopens. Preferably the employer has a clear and consistently enforced policy that requires employees to be present and the employer has to adhere to that policy in a non-discriminatory way.
The Massachusetts Reopening Report states that high risk populations as defined by Centers for Disease Control and Prevention (the "CDC") should work from home if possible and employers should give them priority consideration for workplace accommodations. The CDC includes in those who are at high risk
⦁ People over 65; and
⦁ People of any age who have serious underlying medical conditions including but not limited to chronic lung disease or moderate to severe asthma; serious heart conditions; are immunocompromised; the severely obese; diabetics; those with chronic kidney disease undergoing dialysis; or those with liver disease.
The decision as to what to do for non-reporting employees is simple for employers who must have their employees present in order for them to do their jobs. It is impossible for wait staff to serve patrons remotely or for massage therapists to treat their clients remotely. Employers in "presence is necessary" businesses are entitled to require the employees to return or risk loss of job. Employers in "presence is necessary" businesses can effectively render the employees who refuse to report for work ineligible to Unemployment Compensation also by reporting to the Department of Unemployment Assistance that they were asked to return to work but declined.
Employers in "presence is necessary" businesses as well as those for whom allowing remote work is discretionary, still have to comply with the Family Medical Leave Act (the "FMLA") and to honor their sick and paid time off obligations. The FMLA requires employers to give employees twelve workweeks of leave in a 12-month period for:
⦁ the birth of a child and to care for the newborn child within one year of birth;
⦁ the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
⦁ to care for the employee’s spouse, child, or parent who has a serious health condition;
⦁ a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
⦁ any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member's spouse, son, daughter, parent, or next of kin (military caregiver leave).
The Families First Coronavirus Response Act, which became law on March 19, 2020, expanded the FMLA for Covid-19 to include employees who are unable to work due to a need to care for the employee's son or daughter if the child's elementary or secondary school or place of care has been closed, or the childcare provider is unavailable, due to a "public health emergency". A public healthy emergency means an emergency with respect to covid-19 declared by a federal, state or local authority.
With respect to paid sick time, the Families First Coronavirus Response Act obligates qualified employers to immediately make available 80 hours of paid sick leave for full time employees through the end of 2020 (part time employees have rights but not to the same extent) for the following reasons: the employee is subject to a federal, state or local quarantine related to Covid-19; the employee has been advised by a healthcare provider to self-quarantine due to concerns related to Covid-19; the employee is experiencing symptoms of Covid-19 and is seeking a medical diagnosis; the employee is caring for an individual who is subject to a federal, state or local quarantine or has been advised to self-quarantine by a health care provider; the employee is caring for their child because their school or place of care has been closed or the childcare provider is unavailable; or the employee is experiencing any other "substantially similar" condition specified by the Secretary of Health and Human Services. These newly enacted amendments to the FMLA include the requirement that the employer pay the employee at a fraction of their regular rate of pay (subject to caps).
The eradication of the virus may not come soon and it is possible that these laws and state advisories will be extended.
Employers must review their policies and practices to make sure that they are complying with this new law. If you want to learn more about the new requirements and how they apply to your business, please contact Kathryn O'Leary, the author, at 508-251-9668 or Kathryn@KOlearyEsq.com.