Questions in the Minds of Employees Returning to Work

Some companies in the Bay Area are opening their businesses but with coronavirus cases still rising, employees are understandably wary of coming to work, along with global mobility managers and their recruiters. The risks of contracting the virus once they come back and in the time they will be sharing space with their colleagues are high. 

This is a serious concern that global mobility professionals would do well to talk with employers and their assignees, especially the latter if they don’t know what to ask, especially for expats and new recruits from another country who are not familiar with US laws. These include their legal protection, workers’ compensation, job security and privacy issues, among others.

Meanwhile, here are some questions and answers from Guardian Life, National Law Review and Wall Street Journal’s report from its interview with employment lawyers and other experts. 

I feel uncomfortable returning to work. What are my options?

  • Have a conversation with your employee and actively listen to their specific concerns. Determine if they’re reasonable.
  • Determine if you’ve already addressed your employee’s concerns or have set plans. For a quick plan on safely returning to work, take a look at your employer checklist.
  • Review and comply with the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Act (OSHA) guidance
  • Consider (or continue) remote work options and explore alternative duties and responsibilities that can be performed from home.
  • Employees can only refuse to return to work if they believe they are in immediate danger, the hazard cannot be fixed by the employer, and there is no way to do the job safely.

What social distancing protocols should employers implement?

National Law Review states that employers will have to comply with federal, state and local directives on social distancing as workplaces reopen. Employers will likely want to consider staggering work hours and alternating days of work for different groups, shifts or teams of employees to reduce the number of employees on site. Employers may want to:

  • evaluate workplace layouts and consider making certain stairways and hallways one way if social distancing guidelines cannot otherwise be met.
  • use plexiglass shields, tables or other barriers to block airborne particles and ensure minimum distances in the workplace, as recommended by the Equal Employment Opportunity Commission.
  • develop protocols to avoid crowding in elevators.
  • close or modify certain common areas, such as lunch rooms, time clock stations and workplace fitness centers so that employees can socially distance.
  • erect physical barriers implement rules to limit sharing equipment and supplies. Such rules might require employers to be prepared with additional equipment and supplies before beginning to bring employees back onsite.
  • change latch-based door handles so doors open or close through use of an “electric eye” or with a push of the door or a button or push pad, which may also assist with ongoing deep cleaning protocols.

How are companies protecting employees more vulnerable to COVID-19?

  • Have a plan to protect your high-risk employees (e.g., order adults, those with underlying conditions resulting in immunocompromise, and pregnant women).
  • Stay compliant with the Americans with Disabilities Act (ADA): review Equal Employment Opportunity Commission (EEOC) guidance on reasonable accommodations for disabled employees during COVID-19.
  • If a health care provider advises an employee to self-quarantine because the employee is particularly vulnerable to COVID-19, the employee may be eligible for paid sick leave under the Families First Coronavirus Response Act (FFCRA). The FFCRA applies to employers with fewer than 500 employees, and the quarantine must prevent the employee from working or teleworking.
  • Consider altered worksite arrangements for employees who request it, such as remote work or time off from work.
  • Modify your workspace to allow them to maintain a six-foot distance from customers and other employees, such as using Plexiglas separators or other barriers between workstations.

Do companies need to provide personal protective gear?

  • Yes, according to OSHA, when work practice and administrative controls are not possible or do not provide appropriate protection, businesses are required to provide personal protective equipment (PPE), such as gloves and foot and eyewear protection.
  • Select PPE based on the hazard to your employee and ensure that it’s properly fitted and maintained, consistently work, and regularly inspected.

If I feel sick, can my employer ask about my symptoms?

  • Yes. According to guidelines from the CDC and under ADA, employers are allowed to ask employees what symptoms they are experiencing during a pandemic and restrict them from coming into the workplace. 
  • Employers are allowed to take employee temperatures only if they pose a direct threat to themselves or others. Information must remain confidential.
  • According to CDC guidelines, employees should not return until at least 3 days have passed since recovery and at least 10 days have passed since symptoms first appeared.
  • Employers should not require employees to provide COVID-19 test results or a healthcare provider’s note to validate their illness, qualify for sick leave, or return to work.

Can an employer make me come back to work if I don’t have child care?

  • The FFCRA adds a new reason for qualifying leave under the Family and Medical Leave Act (FMLA). This provision — the Emergency Family and Medical Leave Expansion Act (EFMLEA) — includes cases where the employee is unable to work in person or remotely because they are caring for a son or daughter whose school or place of care is closed or their childcare provider is unavailable due to COVID-19. 
  • The EFMLEA provides up to 12 work weeks of job protected leave with health insurance in 2020, between April 1 and December 21. 
  • To help offset the expense of providing emergency sick leave and paid EFMLEA benefits, private companies are eligible to receive a refundable tax credit for the leave paid out each quarter. 

I have an underlying health condition. Can my employer force me to return to work?

You may be able to ask to work from home if diagnosed with a mental-health disability under the ADA. But if you have an underlying health condition, the White House guidelines call for a three-phase return to work, with special accommodations for vulnerable individuals until the third phase, at which time the policy envisions a return to “unrestricted staffing of worksites.” To qualify, one might have high blood pressure, chronic lung diseases, obesity, asthma, and those with compromised immune systems.

For those who are pregnant, some states, including Massachusetts, New York and California, have laws that reportedly obligate employers to consider reasonable accommodations.

If an employer is not following rules, what do I do?

If an employer isn’t following Centers for Disease Control and Prevention guidelines for a coronavirus-safe workplace, one must bring these concerns with a manager. If nothing changes, one can file an anonymous complaint with the Occupational Safety and Health Administration. While CDC’s guidelines are merely recommendations, OSHA can reportedly determine whether employers are violating its general-duty clause. 

I worry about exposure on my commute to work. What are my options?

If you are able to work from home, ask to do so. If you are considered a vulnerable individual or have an ADA-qualifying disability, you have a better chance of getting permission. Otherwise, you could be required to come to work.