Q: An employee is afraid to return to work. What do we do?

A: "The first thing to do basically is have a meeting with the employee," according to John Martin, shareholder at Ogletree Deakins. "And it doesn’t have to be something formal," he continued; talk with the employee and uncover the real concern.

The answer may be as simple as going over the procedures that are presumably in place, such as face covering requirements, social distancing measures and other measures recommended by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention, he said.

Ashley Cuttino, also a shareholder at Ogletree Deakins, agreed: Overcommunicate the steps the employer has taken to make the workplace safe, she recommended, "especially if you have a workforce that has been at home." Employees at home haven’t seen how hard an employer has been working to make an environment safe, she said; "You cannot overcommunicate on this issue."

And when someone raises a concern, "really listen to what they have to say," she said; they may have a better idea because they’re the ones actually on the floor.

If an employee still refuses to return, there are a few things for HR practitioners to consider. Among them are three major employment laws: The Occupational Safety and Health Act, the Americans with Disabilities Act (ADA) and the National Labor Relations Act (NLRA).

Federal considerations

It’s worth noting that employees have a right to complain to OSHA about situations involving "imminent danger," Martin said, but "COVID-19 is not something OSHA is treating as an imminent danger situation," even in healthcare and retail. From an OSHA perspective, if the employee refuses to work and there is no "imminent danger," "the courts have made it clear that those employees don’t have to be paid," he said. The law does, however, provide job protection for an employee’s refusal to work if certain criteria are met, according to the agency.

And while a fear of contracting COVID-19 alone will not trigger ADA protections, the law may require an accommodation for an individual with a disability. In that case, employers should go through the interactive process as they normally would, Cuttino recommended, considering whether any adjustments would allow the employee to perform the essential functions of their job. And, she said, "one accommodation certainly could be extended unpaid leave."

Employers may want to note that the NLRA protects employees’ efforts to work together to improve working conditions. This could include a complaint regarding the safety of the entire workforce, Cuttino said.

What happens next?

One common client question, Cuttino said, is whether an employee is eligible for unemployment if he or she ultimately decides not to return to work because of a fear of contracting COVID-19.

"The answer to that is that it somewhat depends on the state," she said. "It will … be up to the state agency to determine whether [the refusal to work] was justified under the state’s criteria," Cuttino said, and "some states … are being more restrictive than others."