The Department of Labor (“DOL”) recently provided clarity on issues related to remote work and remote learning.
Reasonable Diligence in Tracking Remote Work Employee Hours
The DOL issued guidance on employers’ obligation to track the work hours of employees who are working remotely due to COVID-19 or due to an already existing telework or remote work agreement.
Under the Fair Labor Standards Act (“FLSA”), employers are required to pay their employees for all hours worked, including work not requested, but suffered or permitted. This includes work performed at home. If through reasonable diligence the employer has reason to believe that work is being performed, the time must be counted as hours worked. What constitutes reasonable diligence in the context of remote work? Employers are limited in their ability to monitor employees working from home, making it difficult to identify work performed in excess of their employees’ scheduled hours.
In the new guidance, the DOL explains that employers may exercise reasonable diligence by providing a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee does not report unscheduled hours through such a procedure, the employer is not required to undergo impractical efforts to investigate further to identify unreported work hours.
For example, though an employer may have access to non-payroll records, such as records showing employees accessing their work-issued electronic devices, reasonable diligence generally does not require the employer to sort through this type of information to identify unscheduled work time. The DOL does note, however, that an employer’s time reporting process will not constitute reasonable diligence if the employer prevents or discourages an employee from accurately reporting the time worked.
Leave for Child’s Remote Learning Days
The DOL added three Frequently Asked Questions (“FAQ”) to its FAQs page. The newly added FAQs provide clarity on whether a working parent is entitled to paid leave on a child’s remote learning days under the Families First Coronavirus Response Act (“FFCRA”). Importantly, the FFCRA only applies to certain public employers and private employers with fewer than 500 employees.
Eligible employees may qualify for paid leave under the FFCRA if the employee is unable to work or work remotely because the employee is caring for a child whose school is closed for reasons related to COVID-19 and no other suitable person is available to do so. The DOL added FAQ #98 to clarify that when a school is on a hybrid schedule, offering certain days for in-school attendance and certain days for remote learning, the school is considered closed on the days that the child is not permitted to attend school in-person. FAQ #99 then clarifies that when the employee is given a choice between in-school instruction and remote learning, and the employee chooses remote learning for his or her child, the school is not deemed closed. Lastly, FAQ #100 confirms that a parent may take FFCRA leave when his or her child attends a school that has not reopened to in-person instruction.
Cybercriminals are targeting remote workers with fraudulent phishing emails purporting to notify workers that their employment is being terminated. These emails provide clickable links for invitations to teleconference meetings or additional information concerning termination packages in an effort to trick people into downloading malicious software. Scammers are also sending fraudulent emails purporting to perform COVID-19 contact tracing that ask for money, credit card information, or Social Security numbers. Healthcare providers with remote workers may want to warn their workforce about the risks of these phishing scams and how they can safely report them to their employer. If you think your workforce has been targeted with one of these scams, you can report suspected activity to the Federal Trade Commission here. To read more about COVID-19 phishing emails, see our post to the Wyatt HITECH Law blog titled, Scammers Target Remote Workers with Phishing Email Campaignsand this recent USA Today article.
Most employers have implemented new policies to comply with OSHA’s requirement to provide a safe workplace and to limit the spread of COVID-19. These new policies typically include enhanced cleaning procedures, facemask and social distancing requirements, and limitations on business travel and in-person meetings. Many employers wonder whether they can legally take these policies a step further and place restrictions on their employees’ behavior outside the workplace, particularly if they believe the employee is engaging in risky travel or other behavior that may increase their likelihood of contracting the virus. Unfortunately, as with most questions surrounding this pandemic, the answer is that it depends.
Certain states (California, Colorado, New York, and North Dakota) have laws that prohibit employers from placing any restrictions on employees engaged in lawful activities outside the workplace. Other states have more narrow laws, such as statutes that protect the off-duty use of tobacco and alcohol or employees’ rights to free speech. Employers must also consider other federal and state laws that would impact their ability to control their employees’ activities while they are off the clock. For instance, employers cannot place restrictions that discriminate against certain protected groups under Title VII, that violate the Family and Medical Leave Act, or that limit concerted activity under the National Labor Relations Act.
Employers generally can place restrictions on their employees’ personal travel or other activities engaged in during their leisure time, if the employer has a reasonable belief that the employee presents an increased risk to the workplace and provided that the policy is enforced uniformly across the workforce. However, even though it is legal, it probably is not recommended.
Most businesses would have trouble monitoring this and enforcing it equally – for instance, people who do not post their whereabouts on social media are less likely to be singled out than those who do. Further, there could be substantial business interruptions if an employer mandates a quarantine whenever an employee engages in any type of “risky” behavior on his or her own time. Employers should also consider whether this is necessary given the needs of the business. Imposing strict requirements that limit employees’ personal lives could result in low morale and bad publicity, and it is probably not necessary if the majority of the workforce can work from home anyway.
A better approach would be to have a return to work policy in place that is strictly and uniformly enforced, which would require any employee showing symptoms to self-quarantine and would require all employees to wear masks and practice social distancing while in the workplace. Depending on the business, employers may also want to implement a policy that requires employees to notify the employer about any upcoming personal travel, advise them about the risks of such travel, and implement policies for how the employee will be integrated back into the workforce after taking the trip.
Most of these questions are fact-specific and depend on which state law applies, the job duties of the employees, and the needs of the business. If you have any specific questions about your workforce, please contact a member of Wyatt’s labor and employment team.
(NOTE: This article includes updates as of Tuesday, August 4, 2020.)
by Kathie McDonald-McClure, Partner
On January 27, 2020, the White House administration declared a public health emergency (PHE) due to the novel coronavirus (COVID-19). On March 6, 2020, Governor Beshear declared a state of emergency, making it only the fifth U.S. state to do so. On March 26th, Governor Beshear, following the advice of public health officials, implemented Healthy at Home, under which the Governor issued daily COVID-19 updates, information and advice, along with executive orders with healthcare, business and activity restrictions aimed at ensuring social distancing to protect Kentuckians and protect the state’s health care operations.
As we previously reported, on May 22nd, the Governor began a phased approach to reopen Kentucky’s economy and to loosen restrictions related to gatherings, sports, events, and other non-business activities. On June 22nd, the Governor announced that Kentucky was ready to begin Phase III of the White House COVID-19 PHE reopening plan. With Phase III, just about everything in the Commonwealth has been open, from restaurants, bars, wedding venues, public pools and even Kentucky Kingdom. Businesses, activities and private gatherings are, and continue to be, subject to specific requirements tailored to the business or activity in order to maintain safety during the continuing PHE.
With Phase III, the Governor stated:
“It has been a long road dealing with this virus. But by following medical guidelines we have gone from a time when our cases were doubling every week, to a point where we are safely beginning to reopen businesses and our economy.”
Governor Beshear further stated that studies by the CDC, the University of Louisville and the University of Kentucky all showed that Kentuckians’ early actions saved thousands of lives.
However, while Kentucky appeared to be doing a good job containing COVID-19 with its phased approach to reopening our economy, other states that reopened earlier began experiencing significant surges in new COVID-19 cases. By mid-July, the White House COVID-19 Task Force had designated many of these states as “red zones,” including states that border Kentucky. In response to the surges in other states, on July 9th, Governor Beshear issued a face covering mandate (discussed below).
Positive cases continued to increase and, by Sunday, July 19th, Kentucky saw its highest total of positive COVID-19 cases: 911. During his COVID-19 update on July 20th, the Governor reported that Kentucky’s daily number of positive cases, as well as its rolling seven-day average positivity rate on COVID-19 tests, had jumped from around 2% in mid-March to about 4% in recent weeks. By July 23rd, Kentucky’s positivity rate had risen to 4.9%.
On Monday, Governor Beshear took two additional measures in an attempt to blunt the growth of positive COVID-19 cases: 1) he rolled back gatherings by people outside of businesses and event venues from 50 people to 10 people (discussed below) and 2) he issued a travel advisory, urging Kentuckians not to travel to states with extremely high COVID-19 infection rates (discussed below). The Governor reminded Kentuckians that we may not see positive results from these additional measures for another 10-14 days due to the lag time between contracting the virus and developing symptoms that may prompt a person to get tested. He advised Kentuckians that if cases are continuing to escalate at the end of that time, more drastic measures recommended by the White House COVID-19 Task Force to governors in “red zones” could be implemented, which includes closing bars and reducing restaurant capacity to 25%.
On June 24th, the Governor reported 797 new COVID-19 cases and a COVID-19 Testing Positivity Rate of 5.28. During his COVID-19 update on Friday, July 24, the Governor stated that if Kentucky does not see a stabilizing of the new positive cases over the weekend, additional measures will have to be taken next week.
Closed Bars and Reduced Restaurant Capacity. On July 27, 2020, Governor Beshear announced new measures to stem Kentucky’s rising number of cases, stating: “Our state government and the federal administration have significant agreement on what we need to do right now to make sure we don’t turn into Florida, Texas, Arizona, so many other states going through what could be absolutely devastating for them.” The following steps were announced:
Bars will be closed for two weeks, effective Tuesday, July 28.
Restaurants will be limited to 25% of pre-pandemic capacity indoors; outdoor accommodations remain limited only by the ability to provide proper social distancing.
Public and private schools are being asked to avoid offering in-person instruction until the third week of August.
The Governor was joined Sunday, July 26th, in Frankfort by Dr. Deborah Birx, the response coordinator for the White House Coronavirus Task Force. Dr. Birx advised that the growth in Kentucky’s COVID-19 cases and, especially, the Commonwealth’s rising test positivity rate required immediate action. Dr. Birx specifically recommended that the Kentucky’s bars close and indoor dining capacity be limited.
To view the order from the Kentucky Cabinet for Health and Family Services covering the new restrictions, which went into effect at midnight July 27th, click here. To view the revised requirements restaurant capacity, click here.
Mandatory Face Covering Requirement. The Governor’s Executive Order requiring all people in Kentucky to cover their nose and mouth with a face covering took effect on Friday, July 10, 2020, at 5:00 pm. The issue of wearing a face covering was so important to retail businesses that the Retail Industry Leaders Association had written a letter to every governor urging them “to require consumers who are not encumbered by a medical condition to wear masks when shopping or in public places.”
The face covering is required in situations that present a high risk of COVID-19 transmission. More specifically, face coverings are required:
“While inside, or waiting in line to enter, any: retail establishment; grocery store; pharmacy; hair salon/barbershop; nail salon/spa; tattoo parlor; child care facility; restaurant or bar (when not seated and consuming food or beverage); health care setting, or; any other indoor public space in which it is difficult to maintain a physical distance of at least six feet from all individuals who are not members of that person’s household;
“While waiting for or riding on public transportation or paratransit, or while riding in a taxi, private car service, or ride-sharing vehicle, or driving any of the above while customers are present; or
“While in outdoor public spaces in which the person cannot maintain a physical distance of six feet from all individuals who are not members of the person’s household and is not otherwise covered by previously issued guidance.”
Several exemptions apply, including for children who are 5 or younger and for any person with a disability, or a physical or mental impairment, that prevents them from safely wearing a face covering. To read the Executive Order and additional exemptions, click here. The face covering order is effective for 30 days, through Sunday, August 9, and can be reviewed and subject to renewal at that time.
Advisory Against Traveling to States with High Infection Rates. As we previously reported, the Kentucky Public Health Department (“PHD”) had previously identified clusters of Kentuckians contracting COVID-19 after returning from “hot spots” in other states. During the Governor’s June 24 and July 9 updates, Dr. Stack warned the public that the Public Health Department had identified several clusters of positive COVID-19 cases among Kentuckians who had traveled to Myrtle Beach, South Carolina and other COVID-19 “hot spots” for vacation. One cluster of 12 travelers to Myrtle Beach resulted in at least 9 individuals testing positive for COVID-19. They developed symptoms within four days of their return to Kentucky.
Throughout July, the Kentucky PHD continued to identify persons who had traveled to hot spots outside of Kentucky as testing positive for COVID-19. As a result, the Governor issued a Travel Advisory that Kentuckians not go to states with a 15% or greater infection rate as identified on the Johns Hopkins University & Medicine Coronavirus Resource Center here. As of August 4, 2020, the Travel Advisory applies to Alabama, Arizona, Florida, Idaho, Kansas, Nevada, South Carolina, and Mississippi. (On August 4th, Georgia was removed and Kansas was added.) The Governor said that the list of states subject to the Travel Advisory will be updated as necessary. To stay abreast of the latest travel advisory states, visit the official Team Kentucky COVID-19 webpage (click here) and scroll to “Travel Advisory”. He also explained that he issued an “advisory” rather than an “order” due to a federal court’s holding that his earlier travel restrictions needed to be framed more like Ohio’s, which had been in the form of an advisory.
Governor Limits Informal Gatherings to a Maximum of 10 Persons. As the Governor has frequently reminded the public during his COVID-19 updates, reopenings could be rolled back as needed to protect public health, especially if the Commonwealth’s progress in the fight against COVID-19 is threatened by increasing cases or individuals who are traveling to other states. And, indeed, on July 20, 2020, the Governor saw fit to roll back the 50-person limit on informal gatherings to a 10-person limit in order to protect Kentuckians in social settings, such as the backyard barbeque, where social norms combined with human nature lead people to let go of inhibitions, forego wearing masks, stand or sit closer to one another, hug, give high fives and pats on the back and otherwise not observe social distancing thereby increasing the risk of asymptomatic transmission.
The Governor’s July 20thExecutive Order states that it “does not apply to or otherwise restrict entities such as restaurants, in-person retail establishments, public-facing businesses, venue and events spaces, or other businesses permitted to reopen pursuant to other Orders of this Cabinet or another Cabinet, or Executive Orders. However, such entities must comply with the requirements set forth for those entities in applicable Orders.” (Emphasis added.) The Order goes on to state that it does not affect the Governor’s Order on Mass Gatherings, which continues in effect, an order that essentially revised previous restrictions on mass gatherings that would have extended to faith-based organizations.
In conjunction with the new Order on gatherings, the Governor’s Office also posted new Guidance for Gatherings up to Ten (10) People which states: “If you host or attend a social, non-commercial gathering of up to ten (10) people under circumstances not explicitly addressed by other Healthy at Work guidance, please follow this document.” (Emphasis added.) During his COVID-19 update, in response to reporters’ questions, the Governor has clarified that the new 10-person limit applies to gatherings at a private residence, barbecues, picnics, and other gatherings of that nature. Social gatherings, including weddings, that take place at a venue that is subject to specific requirements to reduce the transmission of the virus, can proceed so long as the event venue complies with the then current Venues and Event Spaces Requirements posted to the Governor’s Healthy at Work webpage.
Minimum Requirements Applicable to All Reopenings. Pursuant to the Governor’s Executive Order of May 11, 2020, all entities in the Commonwealth shall comply with certain “Minimum Requirements” attached to that Executive Order, in addition to business or activity-specific requirements. While all entities and activity organizations should carefully review the Minimum Requirements (English – Española), the Healthy at Work webpage summarizes them as follows:
As emphasized by the Governor, compliance with the above Minimum Requirements is essential to protect employees in all businesses, organizations and activities – both healthcare and non-healthcare – as well as to protect the individuals with whom employees may come into contact both inside and outside of their work and other activities. Dr. Stack has previously asked employers to make accommodations for those who fall into high risk categories for whom COVID-19 can be deadly.
As set forth in the Minimum Requirements, if any entity fails to comply with the Minimum Requirements, they can be reported to KYSAFER at 833-KYSAFER or kysafer.ky.gov.
Business & Activity Specific Guidance. The Governor has issued specific requirements tailored to the following types of businesses or activities:
The Governor’s Executive Orders related to business-specific and activity-specific guidance is available on the Healthy At Work webpage.
Healthy at Work Signage & Other Resources. Kentucky’s Healthy at Work webpage contains links to several resources businesses can use to help implement the Minimum Requirements. These include signage for employees and customers in English, Spanish and French, including signs for Healthy at Work compliance, Do Not Enter if Sick signs and Grocery Store Signage. There is also a link to the Kentucky Chamber of Commerce webpage for businesses who need Personal Protective Equipment (PPE) such as hand sanitizer and masks. The Governor’s Office has developed a Frequently Asked Questions (FAQs) webpage to answer questions on how the Commonwealth is reopening the state’s economy under the Healthy at Work plan.
On June 23, 2020, the Department of Labor (“DOL”) released an interactive online tool that guides employees through a series of questions to determine their eligibility for paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”). The online tool is available here. According to the DOL website, a similar tool for employers will be available soon.
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that COVID-19 antibody tests cannot be required before employees are permitted to return to the workplace. Since an antibody test constitutes a medical examination under the Americans with Disabilities Act (ADA), it is only permitted when it is “job related and consistent with a business necessity.” Relying on the Centers for Disease Control and Prevention’s (CDC) guidance that antibody tests “should not be used to make decisions about returning persons to the workplace[,]” the EEOC concluded that the testing is neither. As a result, mandatory antibody testing is prohibited by the ADA.
On June 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Q&A’s regarding COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act and other EEOC laws. In particular, parts of the new guidance address specific issues that may arise as older workers, pregnant employees, and those with high-risk family members return to the workplace.
The guidance includes a best practice for inviting employees’ requested flexibility prior to their return.
G.6. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?(6/11/20)
Yes. The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.
An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.
Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.
Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.
Despite the CDC’s warning that individuals over the age of 65 are at a higher risk of developing complications related to COVID-19, the EEOC warned that employers cannot exclude workers that fall into this category from returning to the workplace.
H.1. The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and over have protections under the federal employment discrimination laws?(6/11/20)
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.
Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.
Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.
Regarding employees with high-risk family members, the EEOC provided the following guidance:
D.13. Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?(6/11/20)
No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.
For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.
Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.
Finally, the EEOC warned employers not to provide more favorable treatment to female employees regarding childcare responsibilities, and reiterated that pregnant employees may not be involuntarily excluded:
I.1. If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?(6/11/20)
Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
J.1. Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?(6/11/20)
No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.
J.2.Is there a right to accommodation based on pregnancy during the pandemic?(6/11/20)
There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.
First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.
Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
In its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the Equal Employment Opportunity Commission (“EEOC”) confirmed that, during a pandemic, an employer may require employees to wear personal protective equipment that is designed to reduce the transmission of infection, including face masks or gloves. As businesses reopen, many employers are requiring employees to wear masks. And some state and local governments are requiring or recommending that masks be worn in public. So what can an employer do if an employee refuses to wear a mask? Click here to read more.
Michelle D. Wyrick and Joseph Profancik, a 2020 Summer Associate
As the country sets its sights on reopening the economy, many Americans are understandably hesitant to return to work. Although most states claim that COVID-19 has seen its peak, the number of daily infections reminds us that the virus is still looming all across the nation. Nevertheless, states such as Florida and Tennessee, with numerous states following in their footsteps, have significantly loosened their restrictions and allowed businesses to open their doors once again. As businesses reopen, they will likely face some of the following questions from some employees who are hesitant to return to work.
What if My Employees Don’t Want to Return to Work Because They Make More Money on Unemployment?
In response to the bleeding economy, Congress recently prescribed the CARES Act, which, among other things, allocates an additional $600 per week to unemployment recipients. In many cases, Americans are currently bringing in more money while on unemployment than if they were working. As a result, some Americans may be incentivized not to return to work. In fact, the Department of Labor anticipated such a response and reminded states that they have the obligation to detect waste and fraud in the unemployment insurance system. Many states, including Tennessee, have set up websites for employers to report employees who refuse to return to work.
But can an employee actually refuse to return to work despite the reopening? As an initial matter, the Department of Labor has stated that refusing to return to work, solely because a claimant is taking in more money while unemployed, is not a qualifying refusal. In order to receive unemployment benefits, an individual must be willing and able to work, so a refusal such as this could result in the termination of benefits.
What if My Employees Are Afraid to Return to Work?
Nevertheless, if an employee is afraid to return to work because they fear exposure to COVID-19, the employee may still qualify for unemployment benefits, depending on the circumstances. Kentucky, like several other states, has determined that individuals who leave work “due to a reasonable risk of exposure to infection (self-quarantine) or to care for a family member affected by the virus” have good cause for not working. Likewise, the Occupational Safety and Health Act of 1970 (the “OSH Act”) protects an employee from discriminatory action if the employee in good faith refuses to work under conditions that he reasonably fears will subject him to serious injury or death where he has no other recourse. To be clear, the OSH Act does not give an employee an unqualified right to not return to work. It does, however, prohibit an employer from treating the employee less favorably than similarly situated employees. Whether an individual continues to be eligible for unemployment benefits if she claims she can’t return to work because of risk of exposure to the coronavirus likely depends on the measures an employer has taken to make the workplace safe, including complying with OSHA’s Guidance on Preparing Workplaces for COVID-19 and the Centers for Disease Control’s Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, and what accommodations have been offered to the employee to reduce the risk of exposure. Kentucky has indicated that if an employer provides reasonable accommodations for employees at their workplace or offers an option to telecommute, the employee must work if it is offered by the employer.
An employee may not simply choose to continue to collect unemployment benefits once he has been called back to work. However, if an employee expresses fear of returning to work because of potential exposure to COVID-19, it will be important for employers to ensure that they have taken appropriate steps to protect employees’ safety as recommended by current guidance and that they have considered the availability of reasonable accommodations under the circumstances.