Frequently Asked Questions Employee Refusal to Return to Work & COVID-19

As you prepare for employees to return to work, you may have employees that refuse to do so…

As you prepare for employees to return to work, you may have employees that refuse to do so.  Below is an FAQ of how to handle some common employee concerns.  Please note that this document is intended as a starting point and is not exhaustive.  Each employees’ concerns should be addressed on a case-by-case basis to ensure compliance with the ever-changing COVID-19 legal landscape.

Please also be aware that New Jersey has also passed legislation which penalizes employers who retaliate against employees for requesting or taking time off from work under certain circumstances relating to COVID-19.  As such, it is important to look at each employee’s individual circumstance before making a decision as to what leave, if any, they are entitled to.

An Employee Has Expressed Concerns About Returning to Work, Now What?

First, it is important to find out why the employee is refusing to return to work.  There are several reasons, each of which requires its own response.  Below is a brief overview of common employee concerns, as well as our recommended course of action for each.

(1) The employee has childcare concerns.

For employees with childcare concerns, the Families First Coronavirus Response Act provides up to 80 hours of paid sick leave where the employee is caring for a son or daughter and the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions.

In addition, the FFCRA provides Emergency FMLA (EFMLA) for employees who are unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age if the school or place of care of that son or daughter has been closed or the child care provider of that son or daughter is unavailable due to a public health emergency.

The first 10 days of EFMLA may be unpaid.  However, the employee may elect to substitute accrued vacation, personal, medical, or sick leave for unpaid leave.  For additional information on EFMLA, please contact our office.  

Similarly, New Jersey passed legislation which requires that employees be permitted to use earned sick leave when they are not available to work due to the closure of the school or place of care of their child due to a state of emergency declared by the Governor.

As schools and childcare begin to reopen, employees will no longer be entitled to take paid sick leave for this reason, as both the Federal and State laws require that childcare be unavailable and do not cover scenarios under which employees are uncomfortable sending their children to school or childcare facilities.

(2) The employee has traveled to one of the states covered by the Governor’s travel advisory which advises a 14-day quarantine upon return.

Like childcare, the FFCRA allows employees to take up to 80 hours of paid sick leave where

• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.

Similarly, New Jersey passed legislation which requires that employees be allowed to use their earned sick leave during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.

Arguably, the FFCRA was not intended to apply where an employee elects to travel to a state under the Governor’s travel advisory.  However, the New Jersey legislation may still require that these employees be allowed to use their earned sick leave during the 14-day quarantine period.       

As such, we are recommending that Districts notify employees that they will be required to utilize accrued, paid time (sick, vacation, personal) in the event that they travel to one of the states covered by the Governor’s travel advisory.

(3) The employee has a medical condition.

Employees with medical conditions should be addressed as they were addressed prior to COVID-19.  Districts should engage in the interactive process required by the Americans with Disabilities Act to see what accommodations, if any, may allow the employee to return to work.  This may include providing a work from home arrangement.  However, if the requested accommodations would put an undue burden on the District, the District is not required to provide same.

The employee may also be entitled to up to 80 hours of emergency paid sick leave under the FFCRA if:

• The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

In addition, the employee may be eligible for non-emergency FMLA and/or New Jersey Family Leave (NJFLA).

Each employee’s condition and situation will be different and will need to be assessed on a case-by-case basis.  Please let us know if you need any assistance in this regard.

(4) The employee must care for a family member who has COVID-19 and/or is subject to self-quarantine due to COVID-19.

Employees who are caring for a family member who:

• is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; or
• has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19,

are entitled to up to 80 hours of paid sick leave under the FFCRA. 

These employees are also entitled to use their regular earned sick leave where they are caring for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the family member would jeopardize the health of others.

In addition, these employees are entitled to NJFLA.

(5) The employee has expressed general anxiety about returning to work during COVID-19.

Absent a medical condition which may trigger EFMLA, or other paid leave requirements, a general sense of anxiety about returning to work is not covered by the COVID-19 laws or regulations at this time.  Employees refusing to return to work for this reason must take accrued, paid leave or go on an unpaid leave of absence.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Sarah Gober, Caitlin Dettmer, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.