You are excited to get back to work! However, a few of your employees are not so eager to shed their jammies for pleated pants or steel-toed shoes. Can you force them to return? On the other hand, some employees who are happy to return have asked that you monitor off-duty conduct. You are getting reports from employees about their co-workers, such as, “Jeremy posted a photo last night on Facebook. He was at a BAR with NO MASK. Are you going to do anything about this?” Hopefully, this article will help you navigate a few of these unprecedented scenarios.
1. We informed our employee, Sara, we are open and she needs to return to the office. Sara told HR she was not ready to return. What do we do?
You should talk to Sara about why she does not want to return. The Centers for Disease Control and Prevention has identified several categories of individuals it deems to be at higher risk for severe illness. If Sara is in one of these categories, she may be protected under the Americans with Disabilities Act, Family Medical Leave Act or similar Wisconsin laws. However, you can and should talk to Sara about other accommodations, such as moving her workstation or changing her shift so she is around fewer co-workers. But, if Sara and her health care provider maintain that the only safe option is for her to remain home until the COVID-19 risk in her area is minimized, it would be prudent to honor the request if you want to avoid an employment law claim.
2. Sara falls into the high-risk category and has requested to continue to work from home. However, while we were closed, we found Sara was very inefficient working from home. Do we have to allow her to work from home, or can we place her on unpaid leave as an accommodation instead?
Under both state and federal law, the burden is on you to establish that the accommodation is an “undue hardship” also known as a significant difficulty or expense. If you have allowed Sara to telework for the past couple of months, unless you have evidence of major performance issues, it may be difficult for you to establish an undue hardship defense if she brings a claim under the ADA.
3. What if Sara is not high risk and just refuses out of fear?
According to the Occupational Safety and Health Administration, employees can refuse to go to a workplace that involves “a risk of death or serious physical harm.” If your workplace is clean, social distancing, limiting in-person meetings, etc., then you likely won’t fall into this category. So, should you fire Sara or place her on unpaid leave? Remember that how you treat Sara will set precedent for other employees who act similarly. Also, the National Labor Relations Act protects employees in the event two or more engage in “protected concerted activity.” Refusing to work due to safety concerns falls within this category. As every workplace is different, we strongly suggest talking to legal counsel prior to terminating an employee in this situation.
4. Our employee, John, came back to work, but is afraid of what his co-workers might be doing on the weekends. He has requested we regulate all off-duty conduct. Can we even do this?
Yes, if you are a private-sector employer and have no collective bargaining agreement to the contrary, legally you can have policies that regulate off-duty conduct. While Wisconsin has a “lawful consumable products” statute that protects employees who consume lawful products (alcohol, tobacco, etc.) on personal time, that’s as far as it goes. However, check state law if you have employees outside of Wisconsin, as many states do have laws that protect employee activities outside the workplace.
So, should you monitor off-duty travel, attendance at mass gatherings and whether your employees are wearing masks at the local Fleet Farm? It depends. From the boardroom to the assembly line, can you make sure this policy is consistently enforced? At the time of this publication, there is no Wisconsin state order in place that requires masks, bans travel or prevents mass gatherings (however, check local law for the latest developments). Also complicating matters is that your employees have varying views on the pandemic ranging from “everyone should wear a mask all the time” to “just try and make me wear a mask.” This will polarize your workplace if you let it.
If you decide to implement a policy that regulates off-duty conduct, be as transparent as possible regarding the reason behind your decision, and take time to listen to your employees who disagree. You will not please everyone. However, employees who feel heard are more likely to respect your decision (even if they do not like it).
Sara Ackermann is an employment law attorney at Ruder Ware LLSC. Clients turn to her as a consultant and adviser on employment law topics. Ackermann also counsels HR professionals on developing proactive policies, procedures and protocols drafted to retain talent and create a positive work environment.