Jobs Are Returning But Employees May Not. Can They Be Forced To?

May 19

As more COVID-19 restrictions are lifting, snippets of everyday life are beginning to resurface in New York. However, as the food and hospitality industry begins to return to typical capacity limits, and more customers are dining inside establishments again, the need for service workers to return has been growing. Yet, despite the return of jobs, employees are not in such a rush to come back. Can they be forced to?

Why Employees are Reluctant to Return to Hospitality Industry

According to Grub Street, because of the extended unemployment benefits, many restaurant employees laid off during the pandemic have opted to stay out of an industry with historically low pay, low incentives, and minimal return.

To calculate unemployment benefits, New York’s Department of Labor reviews your highest-paid quarter of the year, or highest-earning week. For many hospitality and service industry employees, this means that their highest pay week may have been a time they pulled multiple doubles, something that doesn’t often happen. This means that now with the increase in income, those individuals are able to build up their savings, something many of them were not able to do before.

This has led some businesses to rethink their pay structure so employees want to return to the workplace. However, while the demand to reopen restaurant doors is here, employees are now wondering if they can be forced to return to work?

Can employees be forced to return to work?

As employers are asking employees to return to the office or physical work setting, some are fearful of low vaccination numbers. While the fear may be very real, the employee is unlikely to have a legally defensible excuse for not returning to work. In those cases, the employee may face termination.

Employers should be asking employees if the employee has an underlying medical condition that would make them more likely to suffer a serious form of COVID-19. If that is the case, the employee may feel that the company is not taking the necessary steps to protect employees from the virus. If an employer knows this and still terminates the employee, they may face discrimination or retaliation claims that could have merit.

For that reason, employers should consider the accommodation guidelines under the Americans with Disabilities Act (ADA) and any state equivalents.

Regardless, this is likely to continue to be an issue for employees and employers alike. As the Biden administration explained, laid-off individuals who turn down work because of COVID-19 safety concerns may be eligible for unemployment benefits.

Because of the newness of the COVID-19 pandemic, there are bound to be employment law questions that emerge as the job market continues to see a need for employees, yet they aren’t clocking in.

If you have experienced discrimination or retaliation during the COVID-19 pandemic in your place of employment, know that the New York employment law attorneys of Brown Kwon & Lam are here to help. Contact us today.


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