As stay-home orders lift, what options are there if workers don’t want to return?

Nothing about the COVID-19 pandemic seems to be easy, and the lifting of stay-home orders and the mass return to work is fraught with issues as well.

Many employees fear putting themselves or their families at risk of catching the virus by returning to work too soon.

Similarly, employers have a range of concerns, such employees taking advantage of the situation or even suing them.

“As this stay-at-home stuff is lifted, I think you’re going to see . . . what I would call this stand-off,” said Sean McGivern, an employment lawyer with Graybill & Hazlewood.

Alan Rupe, an employment lawyer with the Lewis Brisbois firm, said there’s a lot to consider when getting employees back to work during a pandemic.

“There is a huge amount of anxiety on the part of employees and on the part of employers because we’ve never been here before.”

In one respect, the issue of returning to work is clear-cut unless you have a medical condition preventing it.

“If your employer says you need to be there, then if you want to keep your job, you need to be there,” said Gaye Tibbets, an employment lawyer with Hite, Fanning & Honeyman.

“It’s just like any other instruction your employer gives you.”

However, just like in nonpandemic times, employers have to make reasonable accommodations.

“It would be risky . . . to terminate or discipline an employee for not wanting to come in because of COVID threats,” said Ross Hollander, an employment lawyer with Joseph, Hollander & Craft. “It’s still too hot of an issue. You’re rolling the dice. You need to accommodate in some respects. I would be very careful about it.”

Hollander thinks employees may have some recourse if they’re penalized in any way.

“How successful they would be remains to be seen,” he said. “But certainly there’s COVID litigation blowing up all over the place.”

Rights and responsibility

McGivern is already “actively taking cases” related to workplace COVID-19 issues.

He said he’s watched as businesses receive Paycheck Protection Program loans — billions of dollars in federal money designed to help small businesses with their payrolls, among other things — and other money but don’t help employees when they need it.

“I’ve seen a lot of situations where employers are taking the money and demonstrating abject hostilities to employees who exercise their rights to take time off work under the paid sick leave program.”

The new Families First Coronavirus Response Act is an extended family and medical leave act for situations directly relating to COVID-19.

There are many variables within the act, Tibbets said.

For instance, the act makes allowances for parents with children unexpectedly out of school because of the virus. However, now summer is coming up — when students are normally out anyway — so it may not apply.

There are a number of existing laws designed to protect workers, including employees who return to work and find unsafe conditions, such as sick coworkers or those who are coming to work who have immediate family members sick with the coronavirus.

“Employees ought to return to work unless they have a specific, reasonable objection about safety concerns,” McGivern said.

If there are reasonable objections, employees are “likely protected under several laws, such as the National Labor Relations Act and the Occupational Safety Health Act,” he said.

Tibbets said there also are protections under the Americans With Disabilities Act, which would help people whose medical conditions may necessitate accommodations from their employers.

There may be some cases where employees aren’t granted protections, though.

“A big issue on the horizon will be legislative or executive immunity that is provided to employers . . . that may cause them to have less concern about employee safety,” McGivern said.

He said the immunity President Trump is giving meatpacking plants is an example.

“The notion of granting immunity to facilities where there are hundreds of cases of coronavirus and mandating a return to work . . . is insane in my opinion,” McGivern said.

“Frankly, I don’t know how a lot of this shakes out in the end. The economy will have to be restarted, and everybody’s rights do have limits,” he said. Employers have “got to provide a reasonably safe workplace. They don’t have to provide a workplace utterly free of risk.”

Communication and flexibility

Rupe’s advice to employees is simple.

“Yeah, one word: communication.”

He said workers need to talk to managers and their human resource departments about their concerns.

“The employee can ask what’s being done to protect the workplace from the virus.”

For employers, Rupe said the goal should be to communicate and be flexible.

Some employers never would have considered making accommodations for working from home six weeks ago, but Rupe said that now has changed, and they may need to consider it going forward in some cases.

For workers who have underlying conditions that make the coronavirus more dangerous for them, they may need to work from home. Or, if they have jobs where they can’t work from home, they may need to postpone their returns.

“Employers need to be cautious of vulnerable individuals in putting them back into the workplace,” Rupe said. “What we are advising clients is to do a slow opening or a soft opening where they introduce people back into the workplace incrementally.”

He said that means perhaps not opening all departments at once and also sealing departments from each other.

“You don’t want to have the entire facility shut down.”

Spirit AeroSystems, the city’s largest employer, is already distancing departments to a certain extent.

B.J. Moore is the Midwest director of the Society of Professional Engineering Employees in Aerospace, which represents technical and professional employees at Spirit in Wichita.

“The majority are still working from home,” he said.

Some workers returned in late April.

“It’s kind of hit and miss depending on which area,” Moore said.

“There’s been a lot of social distancing, so there’s only a few people in the areas.”

Moore said there’s not been a situation where the union has had to intervene because an employee who didn’t want to come in was forced to.

“That has not occurred yet. We’ve been waiting for it,” he said. “So right now everybody’s been playing friendly in the sandbox.”

Complexity abounds

So in the immediate future — whether that’s this week or in the weeks and months to come — what can employees do?

“Their options in large part are driven by what your employer wants to do,” Hollander said.

At his firm, he said lawyers were told it’s optional when they return.

“When you’re ready to come in, come in.”

He said employers will have to take steps to make employees comfortable, and employees will be obliged to return.

One small-business owner, who doesn’t want to be named because of what she calls the cancel culture that could hurt her business, said she’s concerned employees will fabricate reasons not to return. That’s because they’re making more not working thanks to unemployment and the extra $600 a week the Federal Pandemic Unemployment Compensation program provides.

“I fear it’s going to be hard to incentivize people.”

A partner in another small business, who prefers not to be named in case of potential backlash, said she has become an expert — whether she wanted to be one or not — on issues related to reopening by gathering all the information she can through reading, attending webinars and conference calls.

“Every day, your eyes open to something else that is out there that you should be thinking about. I really am feeling for businesses trying to reopen and do the right thing.”

On one recent call with a benefit provider, 35 minutes of the hour-long call “was how to keep from being sued.”

Although her business is considered essential, she and her partners chose to have employees work from home starting in mid-March.

“At the time, it just seemed like the safest thing to do.”

Starting May 11, they’ll bring their approximately 20 employees back a quarter at a time.

Some want to return.

“There’s some who are struggling a bit at home. They want to get back to their space.”

For anyone who has qualms about returning for any reason, they don’t have to yet.

“They have all the flexibility they need to put their life first.”

The partner said she doesn’t want to sound Pollyanna about it. There has been constant communication to make sure work is still being done.

There was “a bit of a challenge at first because it was an adjustment. . . . Gradually everybody got in their groove.”

A saleswoman for another company has been working from home for more than a month and said she can do her job just as well from there and wants to remain home for now.

“I’m really feeling like it’s not quite time yet to go back into the office,” she said. “I’m not sure my manager feels the same.”

The saleswoman is not comfortable sharing her name publicly because of what her employer might think.

“Hey,” she said her manager told her, “the state’s reopening May 4. Be ready to hit the streets.”

The saleswoman said she wants to respect her employer, “But I hope my employer respects the guidelines rather than personal opinion, and I think potential customers might appreciate this as well.”

She said she knows a lot of other people whose employers are working with them based on their individual circumstances.

The saleswoman said she’s still weighing what to do but thinks she may need to have a conversation with her managers.

“I think they need to look at all angles of this and defer to the experts’ opinion.”

This story was originally published May 3, 2020 at 5:03 AM with the headline "As stay-home orders lift, what options are there if workers don’t want to return?."