Prior to the global pandemic, managing and disciplining employees was a sensitive matter involving cross-department coordination, long paper trails, and uncomfortable confrontation. In our current world, however, the matter of managing personnel is a whole new game. The calculus of workplace incentives has been flipped and measuring motives behind employee behaviors can be opaque at best.
How, then, do HR, managers and employers of small-to-midsize businesses manage the logistically complex task of getting employees back to work? And how does an employer react when employees refuse or resist doing what they are asked?
Let’s look at the ways that organizations are and aren’t allowed to compel and discipline employees when returning to work during the pandemic.
Create a Defensible Position
As a precursor to any reluctance and/or disciplinary requirements that you as an employer comes across, it is important to define and implement all reasonable systems to ensure worker safety. Prior to the pandemic, a web of guidelines and regulations has existed under OSHA, the EEOC, FLSA, and the ADA.
Broadly speaking, employees have the reasonable right to:
When it comes to re-opening the workplace during the pandemic—even as it recedes—it is the employer’s obligation to familiarize themselves with various workplace safety standards and providing adequate coverage. This is most crucial for OSHA standards wherein employees that request safety from imminent danger are owed due evaluation of their claims.
Creating a defensible position is crucial in creating a sound backdrop of legal protection when it comes to employee discipline in the COVID era.
Disciplinary Frameworks and Documentation
So you’ve created a best-practices to create a safe and healthy workplace for your employees to return to. A transition away from telework requires that workers come into the main office some or all of the time. Nevertheless, there are employees who refuse to return to work. What is the best course of action to take in scenarios where an employer sees fit that an employee return to the workplace?
According to the U.S. Equal Employment Opportunity Commission, telework does not necessarily qualify as a reasonable accommodation unless a disability absolutely warrants it:
“Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation.”
Telework is a tricky world to navigate. In many instances, employees have seen increased productivity during the pandemic. However, others have abused the system to neglect work. And for those using telework as a crutch to shirk responsibility, discipline is required.
As with normal times, creating documentation around disciplinary measures is key. Department management coordinates with HR to create traceable narratives—through the compiling of relevant work requests, emails, and deliverables—that illustrates delinquency in the workplace.
The other major consideration for HR to make in relation to the delicate topic of employee discipline through COVID is creating a consistent framework that serves as the organization’s disciplinary policy. Ad-hoc decision making was the name of the game in 2020. The result for so many employers is a mix of momentary decisions, permissions, exceptions, and adaptations. With a light at the end of the tunnel with 2021, it’s important to get our facts straight. Make sure that the expectations about re-entering the workplace are safe, legally sound, and clearly communicated to all employees.
Terminating Employees During The Pandemic
This pandemic has been and continues to be difficult on all parties—employer and employee. However, there are certain cases in which employee discipline doesn’t resolve issues of employee negligence or unqualified delinquency.
In the instances where the employee is at-will, it is acceptable to terminate a relationship so long as it is not discriminatory per regulations. In union shops or for mass lay-offs, the WARNS act and collective bargaining agreements must be respected.
In any and all cases with the pandemic, extra circumspection is required for terminations. Incurring some upfront expense in seeking legal counsel could feasibly create high-value long term assurance down the line. Even with at-will employees, it is crucial to understand what qualifies as discriminatory under the ADA and EEOC and how CDC guidance has impacted those regulations.
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