We have been cleared to return to work, but my employee is refusing to come back to the worksite. What can I do?

We have been cleared to return to work, but my employee is refusing to come back to the worksite. What can I do?

The first step is to learn why the employee is refusing to return to the worksite.  If the reason is related to a disability or for religious reasons, you will need to engage in a good faith interactive process with the employee to see if a reasonable accommodation is possible and would not be an undue burden on the business.  Remote work can be such an accommodation.

An employee who is just generally fearful of returning to the workplace does not have to be accommodated; however, this is an opportunity to communicate with your workforce and reassure them that you are committed to providing as safe a workplace as possible.  Show your workers that you have complied with all applicable guidelines and protocols, including a written COVID-19 Prevention and Response Plan, cleaning, masking and social distancing protocols, and the availability of paid leave for employees who may be ill or who are getting tested or being vaccinated. 

If the employee still refuses to return to work, employers can enforce their “reasonable disciplinary policies and practices” against employees who refuse to return to work and who aren’t entitled to accommodation.  This means that an employer can terminate the employment of an employee who refuses to return to work.  We recommend that you consult with legal counsel before taking any adverse employment action in this area, to analyze the legal risk, such as the employee arguing that s/he was terminated for engaging in protected activity.

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