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How much leeway should employers give their workers when it comes to returning to the office?

Posted at 10:36 PM, May 07, 2020

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DENVER -- This week, thousands of Coloradans have begun to return to work after businesses began to open back up as part of the state’s Safer at Home order.

On Monday, businesses began to allow 50% of their workforce back into the office with strict social distancing and safety and cleaning precautions in place.

However, with the pandemic still spreading in the state as well as new burdens for families to deal with, how much leeway should employers give their workers to choose for themselves when to return to the office? Denver7 went 360 to present multiple perspectives on the issue.

Leeway and liability

“This is completely unprecedented. We certainly deal a lot with layoffs, terminations and things like that, but we’ve never seen anything on this scale before,” said Brad Williams, an employment attorney with Holland and Hart. “There are all sorts of new rules both on the federal level and on the state and local levels that we’re now having to deal with.”

Williams has been advising companies on returning to work in the midst of a pandemic and says there is a lot of confusion about the requirements as well as the new leave laws.

He anticipates that there will be court cases in the future to determine the legality of these executive orders, particularly if they continue to affect the economy.

Companies might be able to start requiring healthy, younger employees to return to the office.

Those who have been exposed to COVID-19, who are caring for someone who has been infected, or who is considered vulnerable, etc., should have a little more leeway when it comes to returning to work as a result of new state and federal rules.

“If an employee is just generally afraid of coronavirus that will not, generally speaking, allow the employee to remain at home,” Williams said. “They’re not usually entitled to unemployment simply because they are afraid of getting sick at work.”

There are other limitations to forcing someone to return to the office that are covered under the Americans with Disabilities Act.

Williams believes most employers are acting in good faith and trying to follow all of the different health guidelines set out by the state in order to keep their workers safe.

Despite this, he says some businesses are hesitant to reopen because they are afraid of liability if an employee gets sick.

“The concern is, especially for small businesses, when they’re reopening, a lot of businesses are concerned that even if they follow all of the federal guidance from the CDC and from OSHA with respect to making workplaces safe, that if someone nonetheless get sick, they may face a lawsuit,” Williams said.

There is a federal effort underway to limit the liability employers will face if someone gets sick with COVID-19 after returning to work — a worker’s compensation law that could offer some financial relief for employees and help for employers if someone becomes ill.

But Williams says it would be difficult for the worker to prove that the contracted COVID-19 from the business and not from somewhere else.

Williams sees liability protections as the biggest legal gap when combating COVID-19 currently and hopes it will be resolved soon. He insists, though, that employers are not trying to get out of their responsibilities, and they want to do the right thing for the safety of their employees.

“Most employers are interested in — very interested in — the health of their employees. It is a balance they want to strike on their own,” Williams said.

Beyond health concerns

The hurdles the COVID-19 pandemic has created for workers goes beyond their health. With schools shuttered and many day cares and camps closing their doors, families are having a difficult time finding childcare so that they can return to the office.

“Families are having to work part time with the children being home and using up all of their sick leave for that other half of the day,” said Geri Baca, the director of NinaBees Preschool at Highlands United Methodist Church.

Even before the COVID-19 pandemic, there was a high demand for childcare around the Denver Metro area.

“There is a huge demand for childcare right now. We are fully enrolled. We have been fully enrolled since our first day with, really, a long enough wait list that we could open up another school if we had the facility,” Baca said.

The preschool has already reopened to watch the children of essential workers. Next week, it will open its doors to all of its students once again.

Baca says there is some anxiety about reopening, but the school is taking multiple safety precautions to protect its students and staff.

“Denver has had, I think, not enough seats for as many kids as we like for quite some time, and that’s why we continue to expand it as we can,” said. Brad Laurvick, the pastor of Highlands United Methodist Church.

He says he understands how difficult it can be for parents to try to balance work and childcare at the moment and the school is trying to help out where it can.

“Some families have the opportunity to say, ‘We’re both home, we can handle this, our kid is staying.’ We have other families who are saying, ‘We’re both trying to go to hourly jobs and we need someone to keep an eye on our kids.’ So, people’s needs are very different right now,” Luarvick said.

With schools closed and many other childcare centers either limiting the number of children they are taking in or delaying their reopening, some parents might not be able to return to work even if they are able.

Parents who cannot find anyone to watch their children due to school, camps, and daycare closures, can also receive pay through the Families First Coronavirus Response Act.

The employee can receive two-thirds of their pay for up to 12 weeks through the program so long as they work for a company with 500 employees or fewer. The state is working on a similar rule.

Employee options

The Colorado Department of Labor and Employment (CDLE) has been busy for the past several weeks trying to answer all of the questions of those who have been financially affected by the novel coronavirus.

Over the past several weeks, nearly 420,000 Coloradans have filed for unemployment.

As businesses begin to reopen, many of the questions the CDLE is trying to answer for people deal with returning to work safely and their rights as a worker.

Unemployment assistance will still be available as an option; however, there are restrictions. The CDLE says unemployment is meant to serve as temporary, partial wage replacement and not as a long-term solution for people.

“You certainly cannot list as a reason that I make more on unemployment than I do in wages,” said Cher Haavind, the spokeswoman for the CDLE.

Workers who are collecting unemployment and who cannot return to work due to health or other reasons are asked to submit an explanation to the CDLE of why they do not plan on returning to work.

Employees who choose not to return to work could face a challenge to their unemployment benefits.

“If you are receiving unemployment benefits then just tell us the circumstances under which you do not want to return to work,” Haavind said.

Those state benefits could be denied if the job is determined to be suitable by the CDLE for the employee and if the business has taken proper safety precautions.

If an employee refuses to return to work, both the employer and the worker are required to report the job refusal to the CDLE.

Employees could have access to financial help through the Pandemic Unemployment Assistance program; however, people can only apply for that after they have lost their state benefits.

Haavind says the best thing for employees to do who are concerned or have hurdles in returning to work is to talk with your employer and explain your circumstances.

“It’s about having an open and honest conversation with your employer about your concerns and asking your employer what kind of accommodations they might be able to make,” she said.

There are also options for employers to provide some flexibility. The state offers a Work-Share program for businesses, which allows the employers to decrease the number of hours each employee works but keep them on the payroll.

In turn, the employees will still receive a paycheck from their job and remain employed. They will also be able to apply for and collect part of their unemployment benefits under the program to make up for the lost wages.

Before COVID-19, only about a dozen employers were using the program in Colorado. In the pandemic climate, more than 1,000 businesses have signed up for a Work-Share agreement in Colorado.

“It’s a tool for employers who are especially looking for a return to work model but maybe not a 100% return to work model for their employees,” Haavind said.

There is no one-size-fits all model in how employers can begin to bring back their employees. Haavind says the state and CDLE are doing the best they can to provide guidance and help to both employers and employees.

Ultimately, she stresses that honest, open communication is key during these unprecedented times.

Finding flexibility

There are challenges both employers and employees are going to face in returning to work.

Kelly Brough, the president and CEO of the Denver Metro Chamber of Commerce, says one of the biggest challenges she is hearing about from employers at the moment is temperature checks.

The state is requiring businesses to conduct and log daily temperature checks of employees in office-based businesses and other facilities under the Safer at Home order.

Right now, employers are trying to figure out how to do so in a way that doesn’t require employees to get within a close proximity of one another.

Brough says many employees are also eager to return to work and so businesses are having to balance their expectations with safety.

“I think part of it is recognizing what we can control and what we can’t control, and I think as employers and employees, having conversations about how we do our best (in this situation),” Brough said.

She stressed that honesty is the key for resuming work responsibly. For employers, it means being honest about the new safety measures in place and what they are expecting from their employees.

For employees, it means being honest about whether they have had any COVID-19 symptoms or whether they have been exposed to someone who has and not put others at risk just because they are eager to return to work.

On the other hand, employees who are able to return to work need to be honest with their employers and not try to take advantage of the pandemic.

“(The way) we stop the spread and address the pandemic is by being honest with each other,” Brough said. “The last thing any of us want to see is the virus takeoff again, (and) the pandemic to become a greater economic challenge.”

Returning to work

Gradually, businesses are beginning to reopen and employees are being allowed to return to their jobs with strict, new safety protocols.

When employees do return, things will not be business as usual; there will still be masks and frequent hand-washing and social distancing measures in place for the foreseeable future.

How and when to safely return to work will depend on each employee’s individual circumstance and an honest conversation with their employers about their options.