After months of disruption due to COVID-19, employers may be eager to bring their employees back to the office. But returning to the workplace may not be as simple as it seems.
What if employees don’t want to stop working remotely? Can you force them to return to the office? Yes and no. Their position, disability status, overall health and age all contribute to whether an employee is legally required to go back to their workplace during the pandemic.
Are you taking steps to protect employees' physical and mental health?
Employees might feel scared, awkward or uneasy upon returning to work during COVID-19. To help them feel safe and keep the workplace running smoothly, you’ll need to update your policies and procedures. Download our free checklist to make sure you don’t miss any important steps when preparing your office for reopening.Get the Checklist
The Short Answer: “Yes, But . . .”
“Generally, an employer can require its employees to return to work even in the midst of the pandemic as long as it complies with federal, state, and local law to provide a safe workplace,” explains Eric J. Stark, associate attorney at Pond Lehocky.
As an employer, you have every right to call your employees back to work, as long as there is no shelter-in-place requirements for your area.
While employees may be nervous about returning to the office during COVID-19, fear isn’t a good enough reason to refuse to complete their work tasks. However, there are some legitimate reasons that could keep them out of the workplace during the pandemic, including:
- belief that the workplace is unsafe (e.g. no health and safety measures taken)
- physical or mental disability that could be exacerbated by working during a pandemic
- belonging to a vulnerable population (e.g. senior citizen, chronic illness)
We’ll explore how each of these categories affect returning to work next.
Employees Can File OSHA Complaints
The Occupational Health and Safety Act of 1970 states that employers must “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
For this reason, if an employee feels that they are at a real risk of contracting COVID-19 in your workplace, they can file a complaint with OSHA. The administration will then inspect the workplace to determine if it is, in fact, hazardous to the health of your employees.
If you are taking precautions and following current safety best practices, you should pass your inspection. Make sure you have employees distanced and wearing masks in the office, have enhanced your cleaning protocols and require employees to isolate at home if they or someone they know tests positive for COVID-19. Download our free coronavirus response checklist for employers so you don’t forget anything.
Unless you are actively advocating against safety protocols (such as encouraging employees not to wear masks) or haven’t adopted any new safety measures, your workplace should be deemed safe, and you can legally require employees to return to work. If they still refuse, you aren’t obligated to keep them on.
Workers with Disabilities, Pregnant Workers and Vulnerable Populations Have Different Rules (Sometimes)
“Employees also may fall into a special category if they have a known disability pursuant to the ADA [Americans with Disabilities Act]. In that case, the employer must engage with the employee in the interactive process in order to work towards a solution, namely whether there is a reasonable accommodation that can be offered to the employee,” says Stark.
Under the ADA, employees have the right to “reasonable accommodation” that won’t cause you “undue hardship” if they have a mental or physical disability that would be made worse by working normally during the pandemic.
For instance, an employee with severe anxiety might fear contracting the coronavirus and infecting their elderly grandmother. Forcing them to return to the office would exacerbate their condition. Or, an employee with a chronic lung disease could become very ill or even die if they were infected. Work with each employee to come up with working arrangements that are safe and comfortable for them and effective for you.
In some states, including Colorado and Texas, vulnerable populations, including seniors and those with chronic illnesses, have the right to accommodations as well.
Pregnant workers who have a pregnancy-related disability can also ask for accommodations under the ADA. Additionally, 30 states and five localities, including North Carolina and Philadelphia, require employers to provide accommodations to any pregnant employee who asks for them.
If Your Employees are Essential Workers, They Can’t (Usually) Refuse
Finally, essential workers, defined by state or local authorities, are generally required to go to work, even during the pandemic, unless they can claim a disability or condition under the ADA.
“You can’t possibly have a dynamic where if you’re a nurse in a hospital you can elect to stay home if you’re needed to provide care for others that’s part and parcel of your job,” explains Richard Reice, Chair of the Employment Practice Group at Michelman & Robinson. “The public policy is that we need you to go to work. For [non-essential workers], the public policy was we need you to stay at home.”
Essential industries usually include healthcare, infrastructure, manufacturing, safety and emergency service, some retail and more. Check with your local guidance to see if your company is considered essential and what that means for the current COVID-19 protocols in your area.
Help employees protect themselves and others in the workplace. Download and print our free COVID-19 office safety poster and hang it in common spaces to remind them of best practices.
Many jobs can’t be done remotely. However, if your employees can work from home, consider making alternate arrangements to a 100 per cent return to the office. For instance, schedule employees for part-time returns, where each “shift” only works at the office on certain days or weeks.
“There is no point in forcing it if remote working hasn’t hurt productivity and profitability,” says economics expert Ferdinando Giugliano. Consider the potential coronavirus exposure and lost productive time due to employee and family testing and isolation periods when deciding if you want to call workers back to the office.
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