EANE Relates the Most Common Issues Posed to Its Hotline

Q & A for the Reopening

By Ellen McKitterick and Mark Emrick

Employers are beginning to look at bringing employees back into the workplace and/or opening up their offices after being closed for six to eight weeks. Here is a sampling of the key questions that the HR Hotline staff at the Employers Assoc. of the NorthEast (EANE) is responding to.

How do I respond to an employee who says they are afraid to return to work? Each instance needs to be looked at on a case-by-case basis. If the employee has a valid reason that fits within an FMLA, ADA, or other reasonable accommodation, then be sure to start the interactive process and see if the request is reasonable. Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

How do I respond to an employee who says they don’t feel safe returning to the workplace? Assuming you have taken all required cleaning and disinfecting steps, you can respond: “we are operating a safe workplace. We are operating in accordance with state and local safety and health guidelines. There currently is no recognized health or safety hazard in our workplace.” Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

As we ramp up our operations, we need our workforce to return to the physical workplace. How do I respond to an employee’s request to continue working from home? Employers do not have to permit work from home if it does not fit their business needs; it is not up to the employee. That being said, in our current crisis, it is wise to allow working from home until the COVID-19 situation is under better control.

What if I can only bring my employees back part-time? They have been on unemployment during their furlough. How will this affect their ability to collect benefits? Employees who are collecting any benefit from unemployment insurance (UI) will continue to receive the additional $600 from the federal government at least through July 31. Partial unemployment may still qualify them for some UI; there is a partial-payment calculator at mass.gov to determine the possible benefit.

Can my employees continue to collect unemployment after I have asked them to come back, but they refuse? They can try, but they are not eligible if you have offered work. Employers should notify the Department of Unemployment Assistance of any employee refusing to return.

What do I do if my employee says they are making more money on unemployment than working for me and do not want to return right away? The employee needs to make a decision. Either they take the short-term gain of extra unemployment or the long-term gain of their job. This would be considered, in most cases, voluntary resignation. Their position may not be available when they decide to return to work.

What effects does our recent furlough have on my employees’ flexible spending account and dependent care accounts, the loss of contributions, and amount of time remaining for contributions in 2020? Employees may be allowed to make changes to some accounts, but it would require an amendment to your plan. IRS Notice 2020-29 may answer more questions.

Can I screen or test employees for symptoms of COVID-19 before they return to work? What screening methods should I use? Yes, during a pandemic you can take employees’ temperatures or ask business-related health questions such as “have you had symptoms, a fever over 100.4, or been in contact with someone diagnosed with COVID-19?: Remember that HIPAA and privacy laws apply.

Can I require older workers who are at high risk to continue to stay at home? No, you cannot exclude anyone in a protected class. If they voice a concern, then you should enter into the interactive process and see if a reasonable accommodation may apply.

Do I have to provide face masks for my employees? In Masachusetts, employees will be required to wear them at work, but it is to be determined who has to provide them. Neighboring states are all requiring the employer to provide needed personal protective equipment.

How do I respond to any employee who refuses to adhere to our social-distancing guidelines or wear a face covering in the office? Upon return to work, employers should put employees on notice of any new policy, any special protocols that may apply, and the personal protective equipment that is required. Engage in an interactive process to ascertain any concerns and determine if special conditions may apply before moving to discipline.

What should I do if my employees are complaining about coming back to work and the extra requirements? Employees are entitled to complain about working conditions to fellow employees. They should remain professional and follow all company policies, but they have the right to voice their opinion as long as they are not defamatory or causing disruptions.

Ellen McKitterick is EANE’s newest HR business partner. She advises member organizations on all aspects of employment law, including wage and hour issues, employment discrimination, employee benefits, leaves of absence, and unemployment, and trains EANE members and non-members on harassment prevention, basic employment concepts, employee medical and leave issues, and key management skills. Mark Emrick is a senior HR business partner at EANE with consulting responsibilities for all aspects of the HR function — recruiting, interviewing, hiring, training, benefits administration, compliance, performance management, coaching, development, corrective action, and terminations. He is also an experienced investigator for employee complaints and issues.