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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 ResponseAct, effective until December 31, 2020). With theinevitable lifting of social distancing restrictions,businesses shut down by such restrictions must makeplans to reopen. But it will not be business as usualwhen operations resume. Employers should startthinking through new employment complications thatare likely to accompany employees’ return to work.
Even as social distancing restrictions are lifted, someemployees may still be hesitant to return to work.While employers should be mindful that employeesmay be entitled to leave benefits under the new federallegislation and previously existing employment laws, the“overly-cautious” employee cannot simply demand toremain on leave without a qualifying reason.
If an employee is at particular risk for COVID-19, adoctor may advise the employee to continue workingfrom home, or alternatively, remain on unpaid leave,as an “accommodation” under the Americans withDisabilities Act. Importantly, the Equal EmploymentOpportunity Commission has already determined that
indefinite leaves of absence arenot “reasonable” accommodations,and employers need not permitsuch leaves of absence. If, on theother hand, a physician suggestsa particular time frame, and it is ofa reasonable duration, employersshould carefully consider permittingsuch leave.
If employees have been orderedto return to work, and they do notqualify for leave under applicableemployment laws (or if they haveexhausted their leave), employeesmay be terminated for jobabandonment. However, beforetermination, employers should issuea written notice to the employeeexplaining the date at which theemployee must return to work inorder to avoid termination, alongwith a clear warning that theemployee will be terminated formisconduct (i.e. the employee willnot be entitled to unemploymentbenefits) if the employee does notreturn to work as ordered. If theemployee is currently receivingunemployment benefits, theemployer should notify the TexasWorkforce Commission that theemployee was ordered to returnto 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.
