What to do if an employee won’t come back to work? This is a question that may come up and there are a few reasons/scenarios that we need to look at and have solutions for:


Scenario 1: Employee is medically compromised or lives with an individual who is and doesn’t want to return to the workplace.

  • Does the employee have a disability under the ADA? If yes, the firm has an affirmative obligation to consider what reasonable accommodations will allow employees to continue to perform the job’s functions.
  • What about the on-site work poses problems? While not obligated to honor the request, at least consider its feasibility and try to find an equally effective alternative.
  • Be creative with physical changes: provide PPE to employees, require any workers that interact with employees with PPE to provide physical barriers at workstations.
  • If answers to all of these are no, can the employee work remotely?
    If still no, can the employee take leave?

Scenario 2: An employee is over 65 and does not want to return to on-site work.

  • Same questions as above with a medically compromised employee
  • Still need to engage in an interactive process

Scenario 3: The employee is scared and does not want to return to the worksite.

  • Fear of the coronavirus is not yet considered a disability under ADA.
  • Go through scenario number 1.
  • Disciplinary action is the last resort. Although you do not have to pay employees if they do not come to work, you don’t want to fire an employee for their fear. Employees can stay on unpaid leave. Document offers of accommodations were offered and that you may have to hire someone to do their job which would lead to them being terminated.

Scenario 4: Employees simply prefer to work remotely.

  • Handled like all other requests to work from home.
  • Give employees a longer time to return to the office, if after this apply the attendance policy. Making a clear job is not remote and gives employees plenty of chances to return to work.
  • An exception is if childcare is an issue and then they are eligible for FFCRA.