PHOENIX (3TV/CBS 5) -- Businesses across Arizona are preparing for a phased-in re-opening of the economy, but if employers aren't careful about their plans to call back employees, they could open the door to discrimination claims.

Many employers are considering bringing workers back in waves. While it may seem safer to ask older workers or people with compromised immune systems to continue working remotely longer than their counterparts, employment attorney John Balitis says that is not allowed, according to federal law.

"The employer probably thinks it’s doing the right thing to protect certain individuals but could unwittingly get itself into trouble," Balitis explained. "The message to businesses is use benign criteria deciding who to bring back. Use seniority, use disciplinary history, things like that that don’t invoke protected characteristics, but you can’t order who you’re going to bring back based on things like pregnancy, age and disability. You just can’t do it."

On other hand, some employees may not feel comfortable returning to the office, and may be wondering if employers can force them to show up at the office.

Balitis says while an employer technically can not force an employee to do anything, the employer does have leverage.

"The employer has the option of separating that worker, laying him off and bringing back another furloughed worker or hiring a replacement," Balitis said. "But what we have to keep in mind, and particularly in the context of this pandemic is that federal law requires all employers to provide safe work places."

In Arizona, if someone resigns voluntarily, typically, he or she would not be eligible to receive unemployment, but Balitis says expanded unemployment compensation benefits during the pandemic could protect the claims of employees who do not feel safe returning to their work environment.

"If there is a bona fide concern and they stay at home and then the employer terminates their employment because they won’t come back, they still may have a chance to maintain their unemployment compensation, but they need to consult with the [Department of Economic Security] about that to see if their concerns rise to the level that will enable them to do that," he said.

Employees with safety concerns can file complaints with OSHA, the Occupational Safety and Health Administration. According to the agency, workers have the right to a workplace "free of known health and safety standards." Employees also have the right to be provided required safety gear, see copies of the workplace injury and illness log, and review records of work-related injuries and illnesses.


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