Furloughed workers don't have much recourse if they fear returning to work

As more Minnesota businesses open this week, workers are weighing the risk of being exposed to the coronavirus with the desire to get a paycheck.

Employers can't force someone to return to the workplace, but they could fire or discipline those who don't. For most healthy workers, the fear of getting sick won't be enough to refuse to go back to work. And for those who don't go, the benefits that go to the unemployed will also evaporate.

"There are some exceptions," said Minneapolis-based attorney Grant Collins, who specializes in labor and employment law. But "the general rule is that if you're refusing work, you're no longer eligible for unemployment or the additional $600 kicker that runs through July 31."

But he added that employers are also likely to be flexible right now, particularly since they were shut down by forces beyond their control.

"This is a difficult time for everybody," he said. "Rather than say 'You're not coming back, you're fired,' I'd say, 'What I can tell you is we need to get people to the office or workplace and we need to get our work done. When you're ready to come back, I can't promise you you'll have the same position because you're choosing now to stay at home. Let us know when you feel comfortable coming back and we'll do our best to see if we have a spot for you.'"

Government officials have taken steps to assure workers' rights as businesses reopen. For business owners and bosses dealing with reluctant employees, determining why someone doesn't want to come back can open up a range of alternatives for both employer and worker.

Employees who are pregnant or have a medical condition will be protected under the federal Americans with Disabilities Act (ADA). Employers often require a doctor's note in that case. Businesses also must strive to accommodate an employee's needs, which might mean special allowances for working from home, if that's possible, or having workers come in after hours when co-workers aren't present.

But what if an employee is concerned because they live with someone who might be vulnerable to the illness? This could include a child at home recovering from cancer, or a spouse or parent with a compromised immune system.

"That's a little trickier," Collins said, because the ADA doesn't apply to disabilities of nonworkers.

Workers who need to be at home to care for someone who is sick might have some job protections under the federal Family Medical Leave Act (FMLA), but employers aren't required to pay workers for that time.

For those whose jobs aren't protected by state or federal laws, Collins said, he advises companies to try to assure workers that their workplace is complying with state Health Department guidelines as well as the Centers for Disease Control and Prevention. That includes disinfecting routines, social distancing, wearing masks and other measures.

It's another matter altogether if employers believe their workplace is unsafe.

An order from Gov. Tim Walz reinforced state and federal laws that protect workers from retaliation if they report concerns over hazardous conditions.

The Minnesota Department of Labor and Industry said employees have the right to refuse to work in unsafe conditions around an "infectious agent" like the coronavirus.

In an overview of worker protections, the agency wrote: "Your employer may not fire you or otherwise discriminate against you for your good-faith refusal to perform assigned tasks if you have asked your employer to correct the hazardous conditions but they remain uncorrected."

Nadia Hecker-O'Brien, a housing specialist with VEAP (Volunteers Enlisted to Assist People), said clients often are confused about their rights when it comes to collecting unemployment insurance and their fears of returning to work.

She often works with human resources departments to help people get benefits they are due.

"I haven't heard of people being pressured to return to work," she said. "I've heard more of either of people really wanting to return to work or of people being afraid to go to work. But the question of whether they get any money is where there's been a lot of confusion. It doesn't seem that there's been great communication from a lot of employers around that piece of it.

"All those I've spoken to say they're allowed to be on unpaid leave as long as they want," she added. "But basically their option was to use up their PTO until it was done and then they're just on unpaid leave."