By Braden Campbell

Law360 (April 24, 2020, 5:51 PM EDT) -- Hospitals and other essential businesses looking to maintain operations, as well as restaurants and retailers eyeing the quickest possible comeback, are running up against a tough question: How do we maintain staffing in a pandemic?

Many workers are understandably reluctant to risk their health for a paycheck, but their ongoing wariness about reporting to work has put their employers in a bind, attorneys grappling with this conundrum say.

Businesses can entice workers with hazard pay, take a hard line and let workers go, or step up safety measures to assuage their fears and limit their exposure to COVID-19. But exactly what an individual employer should do — and whether it will work — depends on their unique circumstances.

"I kind of just have to give employers the lay of the land and discuss the situation and what they may be willing to do or not do," McDonald Carano LLP partner Laura Jacobsen told Law360. "Unfortunately, there's just not a good answer here for some."

The rapid spread of the coronavirus has forced many employers to close, either because customers stopped showing up or because they're subject to government shutdown orders. But hospitals, grocery stores and other essential businesses have stayed open, and many have struggled to get their workers to show.

At first, businesses were willing to accommodate their workers' concerns, Kelley Drye & Warren LLP employment group co-chair Barbara Hoey told Law360. Many told workers who were afraid to report to take paid time off or take unpaid leave. But as the crisis drags on, this arrangement has led to unworkable staff shortages, she said.

Hoey, who practices in New York, has heard from several health care employers that are struggling to maintain staffing. Surprisingly, these clients have not had trouble getting workers to report to the intensive care unit or emergency room, where workers come into direct contact with the virus. Rather, the most reluctant workers have been those hospitals have redeployed from other, closed areas to answer phones or take blood samples in busier units, Hoey said. Likewise, laundry, cafeteria and other support workers have been wary about coming in during the crisis, she said.

These employers have tried to limit direct patient contact, provided protective equipment, or shifted hours so workers can avoid the subway during rush hour, Hoey said. But many workers still won't come in.

"I'm seeing employers right now that have been patient for weeks ... and are at their wits' end at this point," Hoey said. "They've run out of options."

Employers looking to bring back workers they laid off or furloughed earlier in the crisis may also face difficulties, according to Jacobsen, who works with clients in the service industry in Nevada.

Low-wage service workers often make much of their money through tips, which have dwindled during the pandemic, she said. And the recent emergency aid package has further altered the risk-benefit analysis for workers.

The Coronavirus Aid, Relief and Economic Security Act provides $600 per week to workers who have lost their jobs because of the pandemic. Combined with their regular benefits, which are about half their salary in many states, workers earning at or near the minimum wage may have seen their incomes double.

All this makes returning to low-paid work while the pandemic rages on a hard sell.

"I get it — I probably wouldn't be going to work for $7.25 an hour, either," Jacobsen said. "Employees and employers are kind of in a tough spot together."

Employers have several options to get people back to work, but none are a sure thing.

Duane Morris LLP partner Jonathan Segal, who heads the firm's human resources advice arm, said he advises clients to sit down with reluctant workers to hear their concerns and allay their fears. But if that doesn't work, they may have no choice but to fire or furlough them and find replacements.

"There are, unfortunately, so many unemployed people that I haven't heard that many employers are having difficulty finding replacement workers," Segal said.

This option poses some risks, however. Not only can this hurt the employer's relationship with the employee, the worker may file a complaint with the Occupational Safety and Health Administration or bring a lawsuit. To the extent the employer is following the government's coronavirus safety guidelines, it probably won't be penalized. Still, most would rather not face an OSHA probe.

If replacement workers aren't readily available — or if employers would prefer to avoid the risks that come with letting workers go — they can offer so-called hazard pay to entice workers back in. But that's only viable if the employer has extra money. It can also be a slippery slope.

"Who are you giving it to?" Hoey said. "In a gas station, are you just giving it to [workers] who pump gas, [or also to] the person behind the cash register?"

Employers can also encourage workers to come in by making operational changes to reduce their exposure to the virus. For example, some cable companies have changed how they service customers to keep workers safe, Hoey said.

Rather than blindly deploying workers to house calls, some companies have started calling ahead to see if anyone is sick. Instead of announcing their arrival by knocking on customers' doors, technicians will call or text. Companies may ask that only one member of the household interact with the technician, and that others wait in a separate area of the house. And if the technician must be face-to-face with a customer, they do so at distance.

By taking such measures, "you're being as reasonable and as careful as possible to make sure you're not exposing this employee unnecessarily," Hoey said.

And companies that are struggling to bring back laid-off workers should explore "workshare programs," Jacobsen said. About half of states have these programs, which let workers collect unemployment benefits while on shortened schedules.

Jacobsen added employers should be mindful of their affirmative obligations to protect certain workers under disability discrimination laws. If a worker has a disability that makes them susceptible to COVID-19, the employer must provide a "reasonable accommodation" for their condition, to the extent that's feasible.

"Maybe unpaid leave is a reasonable accommodation for that person," Jacobsen said. "Or maybe it's just a matter of surrounding that person in Plexiglas, or moving them to a different part of the building.

"It depends," she said.

--Editing by Breda Lund.

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