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Employee Afraid to Come Back to Work - Options

20 Jul 2020 2:07 PM | Anonymous member (Administrator)

Authored by Dean R. Dietrich

One of the most challenging issues being faced by employers is what to do when an employee is afraid to return to work because of fear over being infected by the Coronavirus from the workplace.  This fear comes from the unknown – the unknown about the effects of the virus, the unknown of how the employer is protecting employees in the workplace, and the unknown of how the virus can be contacted by the employee. 

We know that the virus is transmitted by coughs and sneezes, but we do not know whether the virus can really be caught by contact with surfaces or whether the virus is simply transmitted in the air around us.  Recent reports by the media show the very dangerous aspects of this virus but at the same time, many people are infected with the virus and have little or no negative effects.  It is easy to see how employees can be afraid of returning to the workplace with all the uncertainty that exists.

Employers have the right to require that their employees report to work and work in the settings that exist.  Case law has moderated over time, but the most recent rulings hold that attendance at work (or being in the workplace) is an essential function of almost all jobs and employers can insist upon employees working in their regular work setting. 

The difficulty arises when an employee has an underlying medical condition that is causing the employee to be fearful of being infected by the virus especially because of the unknown consequences of an infection.  If an employee does not have an underlying medical condition, the employer has a right to insist that the employee return to the work setting.  Employers may choose, but are not obligated, to provide some level of accommodation to the employee afraid to come to work by allowing a limited time of working at home or allowing the employee to take a leave of absence (typically without pay) until there is more certainty regarding the virus and its effects.  This is not required and may not be a viable option because every employee would then want to work from home or take some type of leave of absence until the Pandemic has passed.

The more challenging situation arises when an employee is subject to an underlying medical condition that would require the employer to make reasonable accommodations because of the underlying medical condition.  The obligation flows from the Americans with Disabilities Act and the Wisconsin Fair Employment Act which requires an employer to make reasonable accommodations for an employee with a disability.  The typical scenario that an employer should follow is:

  • Engage in the interactive process with the employee fearful of returning to work.  This means that the employer identifies the underlying medical condition, determines that there is a duty to accommodate the employee, and then meets with the employee to discuss what, if any, accommodations may be appropriate based upon the underlying medical condition and the circumstances in the workplace;
  • The employer is not obligated to automatically agree to the accommodations being requested by an employee.  The employer must consider those requests and then make a determination whether there is an accommodation that could be made and whether such accommodation creates an undue hardship for the company.  This analysis will focus on the “cost” of the accommodation as well as the impact of an accommodation on the ability of the company to conduct its business and have the employee perform the work necessary for the functioning of the company;
  • The employer must communicate with the employee as to any final decision about an accommodation and must document (for its files) the analysis that it engaged in when determining whether or not an accommodation would work and whether the accommodation was reasonable (meaning not creating an undue hardship). 

A final decision on an employee requesting an accommodation because of fear or concern about infection from the Coronavirus must be made on a case-by-case basis and will depend upon many factors, including the medical condition of the employee and the reasonableness of the accommodation request.  It seems that the alternatives for employers are centered around giving a leave of absence without pay, allowing the employee to work from home, or providing a different work schedule that will help the employee avoid situations of potential infection but at the same time having the employee perform productive work for the company.  The two important considerations are: (1) engage in the interactive process with the employee; and (2) document your decision as to what, if any, accommodation you will be making for the work situation of that employee.

Remember, OSHA requires an employer to provide a safe workplace for its employees.  We do not have specific rulings on the standard that will be applied for protection against the Coronavirus but it is clear that employers must consider the guidelines from the CDC and the WEDC and then determine whether or not the company can fully comply with the guidelines that have been suggested.  A reasonable standard will apply to these decisions by the company to modify the workplace setting to provide protections for employees.  The company must strive as much as possible to comply with the specific guidelines for its type of business. 

If you have questions about this, please contact Dietrich VanderWaal, S.C.

Dean R. Dietrich, Esq.
Dietrich VanderWaal, S.C.
530 Jackson Street
Wausau, WI  54403
(715) 845-9401
dietrich@dvlawgroup.com
https://www.dietrichvanderwaal.com/

 

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