During these uncertain times, employers and employees alike are struggling to determine whether and when to open. The rules are confusing for almost everyone. Many are facing dire economic problems and worried about the wellbeing of themselves and loved ones. Businesses are worried they will lose customers the longer they remain closed.

Employees may lose unemployment benefits if they refuse to return to work and are not protected by law. Knowing this, the looming question is: “Must an employee return to work if required by their employer?“

If an employer requires an employee to return to work, they must return, unless the employee can demonstrate a danger in returning to the workplace that is excused by law, such as health or medical condition. In the case of employers that fit within the definition of the Federal Family and Medical Leave Act (“FMLA”), qualified employees may be entitled to 12 weeks leave to care for themselves or their family member.

The Occupational Safety and Health Act (“OSHA”) permits employees to refuse work if an imminent danger exists or the employer is not taking responsible steps to ensure a safe working environment. If the employer is taking proper steps, including promoting social distancing, cleaning and disinfecting the office regularly, and ensuring workers that tested positive for COVID-19 stay home, OSHA likely will not apply. Other necessary steps an employer will need to take will include requiring customers and workers to wear masks. An employer will likely have to provide masks for customers or not permit them in the workplace. Employers may need to implement policies preventing sick employees from working. Employers are also being encouraged to find ways to permit employees to work from home as much as possible. Obviously, in some industries, this simply is not possible. High risk workers, including those with diabetes, lung diseases or are immunosuppressed, might not be allowed not to return to work.

At Heiferman & Associates, our labor and employment law attorneys represent employers and employees in a wide variety of matters in state and federal courts, as well as administrative agencies such as the EEOC, DCR, DHR, and the Dept. of Labor, throughout New York and New Jersey.  We advise and represent clients (both employers and employees) in areas including minimum wage & overtime (FLSA and NYLL), unemployment & workers compensation, discrimination (Title VII, NYHRL, NYCCHR, NJ DCR), harassment & other wrongful terminations. We advise employers on litigation avoidance by providing training, audits and review/creation of workplace policies and handbooks. We have extensive experience negotiating and drafting a full range of employment agreements, such as severance, non-compete and non-solicitation, non-disclosure and more.

Contact our office for a consultation. We return all calls and e-mails quickly if we are not available.