What to say to an employee who refuses to come to work?

The context:

An employee of the Martin company refuses to come to work while the company has made all the sanitary measures to ensure its safety. He is afraid for his health and has no more paid leave or TWR to set. What position should the employer take?

The expert's opinion:

Formalizing the employment contract suspension for those who refuse to come to work might seem like a good idea. But by legitimizeing this right not to come, the employer risks legitimize all other behaviour. In addition, how to "sort" between employees if requests abound. What would be the acceptance criteria?

The best solution seems to take note of the absence of a certain number of employees, when they do not show up at the workplace, without having obtained a sick leave beforehand. In this case, a letter should be sent to employees that would mention:

• Because the company has implemented the barrier measures (description of all the measures taken) and therefore is in line with the recommendations given;
• That telework cannot be implemented for the position concerned;
• To insist on the employee to resume his activity;
• If the employee continues not to come at his workstation, the absence will be considered irregular and therefore will not give rise to any remuneration in relation to the absence hours;
• Optional: depending on the nature of the working relationships in the company as well as the very exceptional nature of the crisis caused by COVID 19, it can be mention:
  • Either mention that this irregular absence could have disciplinary consequences,
  • Or do not mention it at all because the company retains a period of 2 months after the end of this irregular absence to possibly use its disciplinary power (it should be noted that in the questions and answers made by the Ministry of Labour, the unfair withdrawal and excessive absence are a form of unfair withdrawal that may constitute grounds for dismissal).

 

A few details

"What can I do if the exercise of the right to withdraw is abusive?

No penalty or withholding of pay may be applied because of the legitimate exercise of the right to withdraw. The employer cannot ask the worker who has used his right to withdraw to return to work in a work situation where a serious and imminent danger persists.

On the other hand, if the exercise of this right is manifestly abusive, a payroll deduction for breach of the employment contract may be carried out. The unfounded exercise of this right does not characterize the existence of serious misconduct, but may constitute a real and serious cause of dismissal. These provisions are exercised, if necessary, under the control of the judge.

What is a serious and imminent danger?

The assessment is done on a case-by-case basis. Any danger that could result in an accident or illness resulting in death or appears to result in a prolonged permanent or temporary disability and "imminent" may be considered "serious" any danger likely to occur abruptly within a short period of time. »

 

In summary: from a legal point of view it is preferable not to endorse the fact that the employee can legitimately withdraw even if humanly the employer can understand it. The company should be preserved by sending a letter reminding it of its rights and duties.

Read also, articles in the employee absence section.

 

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