Resuming Normalcy in the Face of COVID-19
COVID-19 is not going anywhere, and neither are the new leave laws passed by the federal government—at least for a while (Families First Coronavirus Response Act, effective until December 31, 2020). With the inevitable lifting of social distancing restrictions, businesses shut down by such restrictions must make plans to reopen. But it will not be business as usual when operations resume. Employers should start thinking through new employment complications that are likely to accompany employees’ return to work.
Even as social distancing restrictions are lifted, some employees may still be hesitant to return to work. While employers should be mindful that employees may be entitled to leave benefits under the new federal legislation and previously existing employment laws, the “overly-cautious” employee cannot simply demand to remain on leave without a qualifying reason.
If an employee is at particular risk for COVID-19, a doctor may advise the employee to continue working from home, or alternatively, remain on unpaid leave, as an “accommodation” under the Americans with Disabilities Act. Importantly, the Equal Employment Opportunity Commission has already determined that indefinite leaves of absence are not “reasonable” accommodations, and employers need not permit such leaves of absence. If, on the other hand, a physician suggests a particular time frame, and it is of a reasonable duration, employers should carefully consider permitting such leave.
If employees have been ordered to return to work, and they do not qualify for leave under applicable employment laws (or if they have exhausted their leave), employees may be terminated for job abandonment. However, before termination, employers should issue a written notice to the employee explaining the date at which the employee must return to work in order to avoid termination, along with a clear warning that the employee will be terminated for misconduct (i.e. the employee will not be entitled to unemployment benefits) if the employee does not return to work as ordered. If the employee is currently receiving unemployment benefits, the employer should notify the Texas Workforce Commission that the employee was ordered to return to work and refused to do so.
Employers are encouraged to seek legal counsel prior to taking actions to avoid violations of federal, state, and local employment laws. These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel.
Stibbs & Company Attorneys