Mark Pestronk
Mark Pestronk

Q: Although most of my agency's employees can work from home, there are a couple of them that I need at the office to deal with walk-ins and perform other tasks, such as handling a corporate client who does not permit its traveler data to be moved from the office. Can I require that they work in the office? Put another way: Can I discharge them if they refuse to work in the office and insist that they work only from home?

A: Assuming that you can now legally open your office under your state or local stay-at-home rules, there is no legal requirement for an employer to allow an employee to work from home. Therefore, if you make working in the office a condition of keeping the job, you are not acting illegally.

However, you should first consider whether the employee is entitled to emergency leave under the Families First Coronavirus Response Act (FFCRA), which became effective in early April and lasts until the end of 2020. Employees may be entitled to paid or unpaid leave, and you can't discharge them if they insist on it.

The leave to which employees are entitled under the FFCRA falls into two categories: emergency paid sick leave (EPSL) and emergency family medical leave (EFML). There are not only too many acronyms in the law to comprehend, but also too many details and exceptions in each program, so you need to consult the Department of Labor's FFCRA webpage.

In brief, EPSL provides that employees may take up to two weeks of paid sick leave if they have Covid-19; have been advised by a healthcare provider to self-quarantine due to Covid-19; are experiencing symptoms of Covid-19 and are seeking a diagnosis; are subject to a federal, state or local quarantine order related to Covid-19; are caring for another individual related to Covid-19; or are caring for their son or daughter because their school or place of care (including camp) is closed because of Covid-19.

EFML provides employees who have been employed for at least 30 days with up to 10 additional weeks of paid leave (at a reduced rate) when they are unable to work or telework due to the need to care for a child whose school or place of care (including camp) is closed due to Covid-19.

The entire FFCRA applies to all employers with fewer than 500 employees, so this is the first federal law that has ever required small employers to pay employees who don't work. However, companies with fewer than 50 employees may qualify for exemptions if the leave requirements would jeopardize the viability of the business as a going concern.

The FFCRA pay rule applies only if you have work for the employees to perform. If you don't, or if the employee does not qualify for FFCRA leave or uses up the FFCRA leave and has no paid time off available, you can terminate anyone who refuses to come to work, unless a state or local law provides otherwise. 

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