Blog: The California Workplace Advisor

In prior blog posts about the coronavirus pandemic, we’ve looked at strategies and steps employers can take to adapt their workplaces to the “new normal” (which, as we all know, is going to look quite different from the “old normal”). We’ve gone in-depth with the steps employers should take to ensure employees are safe upon their return to the workplace (developing a Safe at Work plan), and the importance of communicating those measures.

Yet despite taking all such steps to ensure workplace safety, some employees may not be willing or able to return to the workplace, and will request that they be allowed to work (or continue to work) remotely.

This blog post discusses how to handle such requests and communicate with the requesting employees, and the possible steps that an employer can take in response (from an absolute “no” to a “yes” to all points in between).

1. FIELDING THE REQUEST

The process starts with the employer communicating its return-to-work plans. It is fair to expect that employees will return to work when you direct them to, and if an employee seeks an exception or variation from this directive, it is up to him or her to communicate this. So what happens if an employee does, in fact, communicate to you that he or she wants to continue with remote work? Be guided by common sense: It’s OK to ask them why. Keep an open mind. Focus on listening and thoughtfully framing your questions, then follow up after you have heard the employee out.

2. SEPARATING EASY DECISIONS FROM HARD ONES

The Sick Employee:  If the employee says he or she is sick, with symptoms of COVID-19 or otherwise, they obviously should not return to the workplace. Specifically ask if the employee has been diagnosed with and/or suspects that he/she has been exposed to COVID-19. If so, that employee should seek appropriate medical attention and isolate or self-quarantine, following CDC guidelines. When that employee does return to the workplace, you can require a fitness-for-duty certification and conduct workplace testing as well, as we blogged here. Even if the employee is sick with the common cold, flu, or something other than COVID-19, you obviously do not want the employee to return to work until the illness resolves.

The Employee with Caretaking Duties:  What if the employee says that he or she is in good health, but is caring for a child or an adult family member in a high risk group for COVID-19? That employee may be eligible for California Paid Family Leave, paid sick leave under the Families First Coronavirus Response Act, or other protected leave under the FMLA or CFRA. Aside from these considerations, this employee is likely not going to be able to return to work unless their caretaking load is shared in some way, and even then, such sharing of the caretaking load may permit telecommuting work, at best.

The Fearful Employee:  The hardest case is the employee who is healthy and not subject to any isolation or quarantine order, but simply fears that they will contract COVID-19 if they return to the workplace. First, inform the employee of all the steps you are taking to make the workplace safe for employees, including your Safe at Work Plan and all the engineering and administrative controls in place as part of this plan. If that explanation does not persuade the employee to return to work, simply ask the employee what he or she feels is needed to allow a safe return to the workplace. It may be that the employee would be comfortable with a limited return of sorts—for example, working a day or two per week at the physical worksite. Although this may be a fear-based position rather than a factual one (after all, if the workplace is safe one day per week, why wouldn’t it be safe for all five days of the workweek?), consider accommodating their request for a limited duration. If some combination of remote work and on-site work is possible, consider this a transition period to allow the employee to acclimate to the “new normal” of the workplace. After a week or two, the employee may be comfortable and willing to increase his/her on-site presence, and decrease telework. If you can tolerate some variation of this model, it might be easier than the alternatives.

Employers should also be mindful of the possibility that an employee’s reluctance to return to work goes beyond fear, and that he or she may have a qualifying mental disability (i.e., one that limits a major life activity) under the California Fair Employment and Housing Act (“FEHA”) or the federal Americans with Disabilities Act (“ADA”). Although this is unlikely, you should listen carefully to the employee’s reasons for not wanting to return to the workplace and, where appropriate, find out if there is a reasonable accommodation for any such disability. (There are specific, heightened standards for engaging a disabled employee in an effort to identify and provide an accommodation—this can be thorny, and it’s a good idea to consult with legal counsel in such an instance.)

Ultimately, though, if an otherwise healthy employee with no qualifying leave reasons simply refuses to return to work in any way, and if telework (or continued telework) is not feasible, then you may have no option to but to terminate their employment, and seek to hire a new employee into that position. But before you get there, be patient, be creative, and explore all reasonable alternatives. In almost all instances, it is better to keep good employees than try to find new ones.

3. MAKING THE DECISION

Depending upon the employee’s position and the type of business, telework may simply be impossible. If so, your decision is straightforward. If, on the other hand, the employee can effectively perform some of his or her duties by telework, then you’ll need to determine how much telework you will permit, and for how long. Regardless of duration, make sure you emphasize to the employee that any telework schedule is subject to ongoing review and change.

In agreeing to a telework arrangement, these are some of the most critical management and performance issues to consider:

Measuring performance:  How will you do this? Are there online tools and metrics available to help you gauge an employee’s effectiveness? If in-person, on-site supervision was a critical tool before the pandemic, are there ways to continue this now? Regular, daily video-conferences or phone check-ins are possible solutions, multiple times a day as necessary.

Monitoring hours and breaks for non-exempt employees:  Just because an employee is working at home does not mean that the employer’s or employee’s obligations as to timekeeping and breaks has changed. Employers must provide the opportunity for the employee to take a 10-minute break for each four hours of work or major fraction thereof, and a 30-minute, off-the-clock meal period for shifts longer than five hours, commencing before the end of the fifth hour of work. And of course, employees must be paid for the time they work, and off-the-clock work is prohibited. (Also keep in mind that if the employee has caretaking duties, there may be multiple clock-ins and clock-outs during a given day—that is also something to discuss.) Communication and online tools are key: if an employee can remotely clock in and out, that is ideal. Short of that, the employee should email or text his or her supervisor at every clock-in and clock-out, and should further communicate if he/she is not able to take a rest or meal break for any reason. And the employee should review and affirmatively confirm that his or her hours for a given pay period (and each day within) are correct.

Workplace expenses: Generally, if an employee’s teleworking requires the use of a resource that an employer would have to pay for if the work was done at the worksite, then the employer is obligated to reimburse the employee for the cost of such resources. This applies most notably to phone and internet usage. Although it may seem counterintuitive, it is not enough to say that an employee would still have a cell phone or a home internet plan regardless of teleworking. The employer must still compensate the employee for the business-related use. And if there are any tools that the employee needs to perform his/her duties (including a computer or other office equipment), then the employer needs to provide or pay for it.

Workplace safety: Employers have a duty to provide a safe place to work, including identifying and correcting unsafe conditions and providing safe tools and equipment. How do you do that in a home work environment? The same way you would at the worksite—you inspect it. That may require a virtual versus an in-person inspection — consider collaborating with your workplace safety engineers (if you have them) and your insurance broker. (It is also worth noting that Governor Newsom issued a recent Executive Order directing broader Workers’ Compensation coverage of COVID-19 as a work injury.)

TAKEAWAYS

This post covers some of the more common scenarios employees may present in response to return-to-work directives. Undoubtedly, you’ll encounter other scenarios. In all situations, remember to take a deep breath, actively listen to the employee, and ask thoughtful, logical questions. You can then provide a thoughtful, empathetic, frank, and creative response after you have considered the employee’s situation.

Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Monte Grix in Hirschfeld Kraemer’s Los Angeles office, mgrix@hkemploymentlaw.com, (310) 255-1827.

Did you miss previous posts in our Planning For The Rebound series? Click on the links below:

Step 1 – Requirements For Returning To The Workplace

Step 2 – Do I Have To Bring Back Furloughed or Laid-Off Employees?

Step 3 – Do Employers Need to Bring Back Under-Performers?

Step 4 – Ready To Go Back To Work? Not So Fast …

Step 5 – Passing the Test: COVID-19 Screening in the Workplace

Step 6 – Deciding Which Employees Can Return To The Workplace

Step 7 – Workplace Safety: Posters Are Not Enough

Step 8 – Safety Tips For Allowing Vendors and Visitors Into Your Workplace

Step 9 – Meal and Break Room Safety

Step 10 – Hygiene Tips For A Safe, Clean Workplace

Step 11 – A Workable Plan For Social Distancing

For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS