As businesses tentatively reopen under Kentucky's new COVID-19 safety guidelines and embark on a "new normal," it's unlikely the precautions will be enough to reassure all employees. That's leading many to ask what will happen to workers who want to keep their jobs, but are fearful of returning to work.
Universal masking, six-foot distancing, and temperature checks may help workplaces operate more safely in the context of an ongoing pandemic. But even if the state's "Healthy at Work" mandates are followed to the letter, workers — wary after months of mixed messages from federal and state officials, health experts, and dubious online claims — are far from agreeing on when it's reasonable to demand they return to work.
Employment law expert Kelly Holden told participants in a Kentucky Chamber "Restart Kentucky" video discussion that healthy but hesitant workers may not have many options.
"If you have work available for that employee and they're not willing to come in, they have essentially resigned their position because you have work available and they're not willing to do it," she advised. "Even what seems like a legitimate basis, that's not really proper."
Older workers and those with health conditions, such as diabetes, hypertension, kidney or heart disease, may be eligible for different forms of paid leave, if they obtain a physician's note. Returning to work right now, with underlying medical or age-related risk factors, could also be considered a disability.
WTVD reports there are specific exceptions in the new federal Family First Coronavirus Response Act that allow for additional leave if you, or anyone in your family, has had or is believed to have had COVID-19.
In neighboring Ohio, otherwise healthy and non-at-risk employees who turn down work at facilities that have met state safety requirements no longer qualify for unemployment benefits. Kentucky hasn't yet taken that action, but Holden says those conversations are coming.
"The deputy director in Kentucky has essentially said they'll look at those on a case-by-case basis, and in some cases, if the employer is doing everything they need to do to provide a safe workforce and the employee is refusing to come just basically out of fear, in most cases that person should not receive unemployment," she said.
Critics argue workers returning in the opening phases of the restarts across the country are being asked to risk their health for the sake of economic interests — or lose their job or benefits at a time of deepening financial insecurity.
In recent days, President Donald Trump has called American workers "warriors" in the fight against coronavirus, but George Washington University public health expert Jeffrey Levi tells the LA Times the descriptor shows Trump appears to view people as “collateral damage to salvage the economy."
“Will some people be affected? Yes. Will some people be affected badly? Yes," the president said this week. "But we have to get our country open, and we have to get it open soon.”
In Kentucky, Gov. Andy Beshear initially signaled that the state would not begin reopening businesses until it detected at least a two-week decline in the rate of new coronavirus cases. In the weeks since, with the commonwealth's COVID-19 numbers plateaued but not yet declining, the governor has unveiled a phased-in reopening timeline starting May 11. Asked why the strategy appeared to have shifted, Beshear has cited dramatic increases in testing and the leveling off of cases despite that additional testing.
"We are at a far better place today than anything, any model, any expectations that I was ever given," Beshear said in late April.
