Do You Have To Return To Work If You Feel Unsafe?

With many stay-at-home orders ending in May, states are slowly reopening non-essential businesses like gyms, hair salons, and even bars and restaurants. But most Americans still believe that reopening too soon is a bad idea. In a poll conducted by The Economist and YouGov in early May, 29% of adults — a plurality of those polled — said they believed it would take several more months before we could safely reopen.

Some groups have framed ending lockdowns as an issue of free determination versus tyranny, protesting in front of state capitols — if you want to reopen your business, you should be able to; if you want to stay home, then stay home. But if your employer tells you to come back, are you really free to say no? What are your actual options?

Jenny, 24, is a receptionist for a legal firm in South Carolina and has continued to work in the office throughout the pandemic. “We are a firm that primarily handles real estate closings, but since we're ‘legal services,’ we were technically considered essential,” she says. “I was never given the option to work from home.” When asked whether she told management about her concerns about working on-site, she says, “Honestly, I haven't, as I’m not in a position where I could lose my job and make ends meet.”

Andrea, 31, is a bartender in West Virginia. “I was asked to go back to work today,” she says, but clarifies that she has not yet had a shift. “It all feels very rushed and very scary. But when we open back up, I will lose unemployment and I’ll have to go back to work to be able to pay my bills.”

A Washington Post/University of Maryland poll found that 78% of those polled wouldn’t feel comfortable eating in at a restaurant right now. In response to a question asking whether people who refuse to come back to work due to virus fears should be fired, 67% answered they should not. Ally, 25, is a server at a restaurant in Ohio that reopened on May 15th. She hasn’t brought up her concerns to management because she doesn’t think she’ll be taken seriously. “When I gave limited availability, I was questioned as to why I wasn’t available all day every day,” she says. “I’m returning so I can keep my job, but I’m hoping that we will see that this is dangerous and close again. I can’t afford to not get unemployment and not work.”

And, of course, just because your employer has decided to reopen doesn’t mean they’re taking all the possible safety precautions and following state guidelines. “[Our] capacity is at 60 with no requirement of customers wearing masks or gloves,” says Andrea of the bar where she works. “From what I’ve asked of the people who have gone back, people who are coming out are not following social distancing guidelines. My biggest fear, especially in my job, is that people will be even less inclined to practice safety after they start drinking.”

Alex Granovsky, a lawyer at employment law firm Granovsky & Sundaresh PLLC, says that your employer can “probably” make you return to work. But there may be certain exceptions. “Under normal pre-COVID circumstances — let's say you suffer from panic attacks and going into the big city makes you nervous — you can request an accommodation for disability,” he says. First, you would need a doctor’s note. “Then the employer and you are legally required, pursuant to the Americans with Disabilities Act, to engage in this thing called an interactive process, where you try to determine whether the employee can do the essential aspects of his or her job, the big stuff, with or without a reasonable accommodation.”

“With COVID, it gets tricky, right?” he continues. “Because if you don't have [the virus], are you disabled? No. But you could theoretically be at higher risk. If you're undergoing chemo or you have asthma or diabetes, I would imagine that you can then get a note from your physician saying that this person suffers from a medical condition and undue exposure would cause them severe medical harm.”

Your employer would have to test whether a reasonable accommodation could be made for your position. “Can a stockbroker work from home?” Granovsky gives as an example. “Is that a reasonable accommodation? Maybe, but then it becomes very industry specific.” As the economy reopens, employers and industries will make determinations on what exactly is a reasonable accommodation for at-risk people during a pandemic that has killed over 90,000 Americans.

If you’ve already been working from home, you might have an easier case receiving an accommodation under ADA. “Employers are going to have a heck of a hard time saying, no, we can't accommodate that anymore,” says Granovsky. “But don’t forget, before that responsibility is triggered on the employer, the employee needs to present some sort of disability or reason to enter into the interactive process — which most employees don't think to do.” 

If you refuse to return for the general (and understandable) reason that COVID-19 remains a public health threat, it’s true that your unemployment benefits could be in danger. “They might claim that's job abandonment such that you do not receive unemployment,” says Granovsky. Some states, like Texas, are issuing new exceptions on who can refuse a suitable job offer and still be eligible for unemployment — including if you’re over 65, have household members who are over 65, or cannot find child care to return to work. But so far, new guidances like these aren’t the norm in unemployment offices across the country.

“If you're very uncomfortable going into work, I think it's smart to call a lawyer,” says Granovsky. "You have to put yourself first.”

If you can’t refuse to return to work on a legal basis, you can still try to reason and negotiate with your employer. First, all communication should be done over email so that you have documentation of your attempts. If you want to frame the conversation proactively without being adversarial, Dr. Denise M. Rousseau, a professor of organizational behavior and public policy at Carnegie Mellon University, offers some advice on striking an “idiosyncratic deal” — an individual agreement different from the standard policy put in place by your employer.

For one, you can emphasize that you’re vulnerable, whether it’s because you have an underlying condition or live with someone who does. But another persuasive approach capitalizes on what Rousseau calls “obligation or reciprocity.” She gives an example of what you might say: “Because I really am afraid, given the job I have, about getting [COVID-19], I've really worked hard at a distance. I need a couple more weeks before I can start up again and feel comfortable. Here's what I did, you know that I care about this job, I care about you and you know I've been committed,” says Rousseau. Or if you haven’t been able to work from home, you might emphasize your track record, your achievements, your productivity while at this job. "So you're saying reciprocity — 'I've been good, so you owe me.' And I'd probably add a little need into that too, because managers do respond to that — 'I'm worried because of my kids, my family.'"

Stephanie, 32, works at a construction company in California and hasn’t returned to the office yet, citing child care needs. “I’ve clarified to my company that I’m unable to return to work until schools reopen,” she says. “They’ve responded without much push back, but probably 70% of my team is working at the office again.”

Rousseau mentions a third tactic you could try, if you know you have this bargaining chip. “When I do come back, I will do something different I haven't done before,” she says. “When I do come back, I'll take on that task you wanted me to do. When I do come back in two weeks, in a month, I'm willing to do this. That's the pay-it-forward approach.”

Lyn, 30, has been able to work from home for her sales/manufacturing job in Minnesota. “While our state is still under a stay-home order and I should technically be working remotely, my direct supervisor thinks COVID-19 is a hoax, so his reports are starting to work from the office,” she says, and notes that not much has been done about safety measures at the office. “I’m back in my office, but I wish there was more support for common-sense precautions, and consistent messaging from management.”

Workers aren’t just feeling as though they have no choice about returning, but also feeling that they have no input in how the reopening is being implemented. Rousseau says that participation is a key idea that employers need to take to heart during this time. “When people participate in solving a problem or in figuring out how best to make a transition back to physical work in a place, you get two things,” she says. “One is, of course, you get some greater sense of control, and that's important, but the second thing is you get and give information. Information is really important — so that the worker understands it's indeed true that the employer is prepared to make the workplace safe.”

Asked about what shifts in attitude there need to be in a post-pandemic society, Rousseau says, “I think recognition of how interdependent we are — [employers] interdependent with our employees, and our managers interdependent with our clients or customers.” 

“When you have novel times, you're learning and you're building on relationships. And how you treat people now will be remembered going forward — positively or negatively,” says Rousseau. “So how do you want to be remembered?”