For one manicurist at a nail salon in Texas, May 18 looms large. It’s the tentative date that she must return to work, but her fears over the coronavirus pandemic remain.
“Doing someone’s nails is an extremely close contact job. You’re constantly in someone’s face,” said Anh, 54, who asked to go by her first name only to avoid any conflict with her employer and customers. “Many customers didn’t think COVID-19 was something to be afraid of, and therefore did not halt travel and social plans.”
Ahn is scared to return to work because she gets sick easily and her husband, who is 65, is at a higher risk of developing a serious illness if he contracts the virus. But many of her customers have been messaging her and her manager, asking when the salon will reopen.
“There’s a pressure to open and keep customers happy,” said Ahn, who is the sole provider for her family.
Ahn is one of many workers facing the prospect of going back to work as states reopen their economies during a pandemic. Questions of whether you can be forced back to work are mounting, and in most cases, employees have to return unless the work environment isn’t safe or they’re considered high risk.
Can you get fired if you refuse to go back to work?
“Generally speaking, if the employer requires you to return to work, you must return to work,” said Daniel Feinstein, a labor and employment lawyer at Davis & Gilbert LLP, “unless you could show that there's an imminent danger of returning to work.”
The Occupational Safety and Health Act, or OSH Act, allows workers to refuse work if there’s an imminent danger or your employer is not taking responsible steps to ensure a safe working environment.
So, if your employer is taking steps to protect you — such as promoting social distancing measures, having the office cleaned regularly, and ensuring people who have tested positive for COVID-19 don't come to the office — this means you likely won’t be protected under the OSH Act.
In Ahn’s case, the employer is taking extra precautions, which means her employer likely would have the right to let her go if she refuses to return to work.
“My employer is requiring masks for customers upon entering the store,” Ahn said. “Workers will also have masks and will be sitting six feet apart from each other.”
What if I’m a high-risk worker?
People who are at higher risk for a more severe illness if they contract the disease may be allowed not to return to work. That could include those who have diabetes, chronic lung disease or are immunocompromised, according to the Centers for Disease Control and Prevention.
“If returning to work or commuting to work could endanger them, then they may be protected under the disability laws,” Feinstein said. “If an employer lets them go for not returning to work, they could have legal exposure.”
Guidance from the Equal Employment Opportunity Commission (EEOC) says employers must find ways to mitigate the risk for people with underlying conditions under the Americans with Disabilities Act (ADA).
Can you lose unemployment benefits?
If employees refuse to return to work and aren’t protected by ADA or OSH Act, they likely will lose access to unemployment benefits, too, unless they have a “good cause.”
A good cause includes situations such as having a health issue or needing to care for a close family member who has a health issue. If you must provide childcare because your child is not in school is also considered a good cause, along with having unsafe working conditions.
But the outcome is really decided on a case-by-case basis.
“In the absence of good cause, if an employee refuses to return to work, that will generally mean that they're not entitled to unemployment insurance,” Feinstein said.
Some states — such as Ohio, Texas, Ohio, Vermont, and South Carolina — are asking employers to report to the state department of labor if an employee refuses to come to work without ‘good cause’.
Can I negotiate to work from home for longer?
If you have health reasons for not returning to work, you may have the legal right to negotiate your future work arrangements.
“Your legal right will really be dependent on if you have a reason why it's necessary,” Feinstein said. “You and your employers are supposed to engage in what's called the interactive process to determine how best to accommodate that medical condition.”
Employers may be more open than before to negotiate work arrangements after offices reopen. One in 6 employers are investing in the development of their employees and my provide re-skilling and training, according to a survey by Society for Human Resource Management.
“I always advise any worker and any employer to have honest conversations and to request things in any situation,” said Alex Alonso, SHRM’s chief knowledge officer. “The worst possible outcome is that you're told no. As long as you’ve asked for it and make a case, there's a good reason to pull this together.”
What if I have to stay home with my kids?
The recently-passed Families First Coronavirus Response Act (FFCRA) gives more leeway to employees who can’t work because they have childcare responsibilities because schools are shut down.
“They’re now entitled to these 10 weeks of leave at partial pay,” Feinstein said. The partial pay is around two-thirds of the employee’s usual pay.
Do I have access to more paid sick leave?
Yes. Under the FFCRA, many employers are required to provide paid sick leave or expanded family and medical leave for COVID-19-related reasons through the end of 2020.
Read more: How to file for unemployment insurance
The paid sick leave provisions apply to certain public employees and private employers with fewer than 500 employees, while small businesses with fewer than 50 employees may qualify for exemption in some cases.
“If employees are sick or if they've been quarantined,” Feinstein said, “then they're entitled to two weeks of sick leave at their regular salary for coronavirus-related reasons.”