Getting Back to Business: What If My Employee Doesn’t Want to Come to Work?

Governor Mills’ recent announcement lifting some stay-at-home restrictions has prompted businesses to reopen their doors to both customers and employees.  Of course, with workplaces reopening comes a whole slew of new challenges for employers.  You didn’t think it would get easier, did you?  In the coming weeks, Skelton Taintor & Abbott will be hosting a series of webinars on this topic.  You can sign up for Thursday’s session at 12:00pm EST, Best Practices and Legal Guidance for Re-Opening Your Business in Maine, with Jordan Payne Hay, Amy Dieterich and Ted Small by clicking HERE.

In the meantime, one very common issue that is bound to arise (if it hasn’t already), is when an employee says they don’t want to return to work even though the workplace is back up and running and their job is available.  If faced with this quandary, here are a few things you might be wondering:

Q: If my employee says they don’t want to work, do I have to pay them?

A: No.  You do not have to pay an employee if they have decided not to come into work, unless that employee otherwise qualifies for paid leave under the Families First Coronavirus Response Act (FFCRA) (effective until 12/31/20), like if childcare is still unavailable due to COVID-19 or if your employee is sick with COVID-19 symptoms.  Read more about FFCRA leave here.

Q: If my employee says they don’t want to come into work, can they still get unemployment benefits?

A: No.  If a person has work available to them because their workplace is opened, they are not going to qualify for unemployment any more.  Their furlough has ended, and they have been called back to work, so it’s not the case that an employee can refuse to come back to work and still receive unemployment benefits.  Note:  if an employee is fired for not coming into work, then they could arguably re-apply and qualify for unemployment.  If you are thinking of firing an employee at this time, you are urged to contact counsel to review your options.

Q: Can you discipline or fire an employee if they don’t want to come into work?

A:  Not without creating a lot of unnecessary risk.  If someone says they feel unsafe and does not want to come back to work, they may qualify as a “whistleblower” under the Maine Whistleblowers’ Protection Act (MWPA).  The MWPA says that an employer cannot discriminate for a good faith report of what an employee has reasonable cause to believe is a condition or practice that would put the health or  safety  of  that  employee  or  any  other individual at risk.  A report about a risk of exposure to COVID-19 may qualify as protected activity under the  MWPA  and  an  employer  may  be  liable  for  retaliating  by terminating  or  disciplining  a complaining employee  for  making  such a  report.   Additionally, the MWPA protects employees from discrimination for a good faith refusal to carry out a directive to engage in activity that would expose  them  “to a  condition that  would result  in serious  injury  or  death.”   That may include refusing to come to a worksite if there is a high risk of exposure to the virus, particularly if they have a condition that puts then at a higher risk of death.

As companies begin to re-open and employees return to work (or not), there are bound to be legal issues that arise such as the ones described above.  For more information about some of those issues, what to look out for, and how best to be prepared, please join Attorneys Jordan Payne Hay, Amy Dieterich and Ted Small on a webinar this week!

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James  F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.