Generally, employees do not have job protection when refusing to return to work due to fear of contracting COVID-19 unless they have a health condition that creates high risk of serious health complications if they were to get COVID-19. The employee cannot just conclusively state he has such a health condition and the employer is entitled under the Americans With Disabilities Act (ADA) to a healthcare provider’s written confirmation of the health condition to confirm it. If an individual is overweight with diabetes, that health condition makes him at a high risk of serious health complications if he got COVID-19. Once the employee has his health care provider provide written confirmation of that health condition the employer and employee as part of an interactive process should discuss reasonable accommodations that may, include the option of working from home. Of course, many jobs cannot productively be done at home so that option may be unavailable.
Job protection is generally not afforded under the law to an employee who, while not having such a health condition, is fearful of getting Covid-19 and bringing it home to someone in his household that has a high risk of serious health complications if he got Covid-19. If an employee is concerned that he may get and take home Covid-19 to his father-in-law who is living with his spouse and him, while that is obviously a legitimate fear, the law does not provide job protection to preserve his job upon his desire to return once the pandemic subsides.
Lastly, if an employee of an employer with less than 500 employees needs to stay home because his child is in remote or hybrid learning this Fall, that employee not only gets partially paid leave of absence in accordance with the federal law but also has job protection for up to 12 weeks. This remote or hybrid learning for younger children has created a temporary serious need for students to have a safe place to do their online learning and for the additional time that would normally be taken up with school or after school activities while their parents work. Many parents do not have the option to put their career on hold so they may look to some creative alternatives for their children to be watched over while the children learn on line and during the rest of what would normally be their school day. Such alternatives I have heard of include a retired teacher or a stay home parent overseeing several children or enrichment camps at places that would otherwise have after school programs this Fall.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].