Re-opening businesses and returning to work post COVID-19

As of Today, May 4, 2020, many non-essential business are expected to re-open in accordance with J.B Pritzker's most recent executive order. As a result, employers expect their workforce to be willing, ready and able to return to work immediately, but many employees are faced with conflicts between child care, potential exposure and the need to provide for their families.

Does the employer have a right to require its employees to report to work? Does the employee have a right to delay going back to work because of potential exposure or for lack of childcare options? Does the employer have an obligation to accommodate the employees' needs? If not, can the employer terminate me? Should the employee resign if he/she cannot come back to work? What type of safeguards should the employer provide to reduce the employee's exposure? If my employer orders me to come back to work and I choose not to because of health, safety or childcare concerns and I am fired, can I collect unemployment or is it considered job abandonment? These are the most common questions by many of our callers. This article is meant to provide some guidance as to these growing concerns.

Does the employer have a right to require the employee to report to work? Yes, it does. As businesses are given the authorization to re-open and go back to "business as usual" with the necessary safety measures, they will need to require employees to return to work in order to provide their services, generate income and operate on a regular basis. Even when many businesses will operate under reduced hours, employers will need to have their workforce ready, willing and able to work as needed.

Does the employee have a right to delay going back to work due to potential exposure or child care issues? If you or a member of your immediate family has an underlying serious health condition which can increase the chances of contracting the virus, you should contact your employer and request an accommodation due to your (or your family member's) health condition and provide medical evidence upon request. Most likely this "accommodation" will be an unpaid sick leave under the employer's sick leave policy or under an applicable law such as the Family and Medical Leave Act ("FMLA"). In those positions where remote work is possible, both the employer and the employee may continue to explore this as an alternative; however, employees have to bear in mind that this accommodation will probably be on a short-term basis as the employer will expect the employee to eventually return to work in the immediate future, especially if the position requires in-person duties.

Businesses will be responsible for providing PPE equipment and enforcing PPE equipment is use during regular business hours in accordance with Gov. Pritzker's executive order in order to minimize exposure.

When it comes to childcare issues, and while school is still out, employers will be faced with the challenge of creating shifts or alternating schedules to accommodate remote learning and child care while ensuring that their business needs are met. Many business owners have staggered return dates per job positions to minimize exposure and to allow employees the time to arrange for childcare. As the executive order allows for business to re-open, childcare alternatives should become available in compliance with the executive order. However, the responsibility to secure childcare will ultimately fall on the employee and while the employer may alter the return to work date to allow the employee to secure reliable childcare while school is out, come June, employees will be expected to return to work as summer childcare alternatives should be in place regardless of COVID-19.

If I don't go back to work, can the employer terminate me? Do I have to resign? When it comes to employment law, it is important to remember that Illinois is an "at-will" jurisdiction, which means that, barring discriminatory reasons, employers have the right to terminate your employment at their own will. Even if you are "ready, willing and able" to work, the employer can decide to move in a different direction and terminate your employment. If you are unable to go back to work or you decide not to, it is likely that your employer will let you go and hire someone else in your place. In some instances, the employer may allow you to resign instead of firing you reducing the negative impact of a termination letter in your personnel file.

If my employer orders me to come back to work and I choose not to because of health, safety or childcare concerns and I am fired, can I collect unemployment or is it considered job abandonment? Depending on your particular circumstances, if you refuse to go back to work, even when you may have valid health, safety or childcare concerns, it may be construed as job abandonment and you may not be able to collect unemployment. If your employer re-opens its business and your specific position is among those required to return, you will need to make arrangements to go back to work. If you have a particular need, communicate it to your manager promptly and discuss alternatives that will allow you to fulfill your duties.

In conclusion, as the next three weeks unfold, both businesses and employees will need to re-adapt to what will become our new normal. On one hand, business owners are eager and anxious to generate income and take advantage of the remaining months of this year in order to reduce their losses. In order to do so, they will need to rely on their workforce, now more than ever. On the other hand, employees that have been furloughed or laid-off want and need to go back to work to provide for their families, but many are afraid of the potential exposure and will need to rely on childcare options in order to go back to work. Both parties will need to find a delicate balance between the human and legal aspects of this unprecedented situation.

If you are a business owner that is expected to re-open as of today and have questions or concerns as to your rights as an employer or if you are an employee expected to go back to work this week but you have a personal situation that affects your ability to return, our firm is available to answer your legal questions. We offer free phone consultations to both employers and employees as to general labor and employment matters as well as good human resources practices. Call us today in Bolingbrook at 630-635-5555, or in New Lenox at 815-435-5555 or visit us at www.glawpartners.com or www.facebook.com/giamancolaw.