As the pandemic slowly comes to an end, many employers are considering whether it is time to ask their employees to return to the workplace. With many COVID laws and regulations still in effect, and in light of existing disability, discrimination and whistleblower laws, the answer is complicated.
Under normal circumstances, employers can require their employees to work in their offices or facilities. However, as with many workplace conditions, employers may have to make reasonable accommodations for disabilities (or religious practices). During a pandemic, accommodating disabilities becomes more complicated.
Some disabilities (including mental health disabilities) may be exacerbated by COVID and, therefore, employees may be entitled to altered or additional accommodations, including, possibly, teleworking, socially-distant workspaces, and use of PPE. In addition, many state and local COVID laws require accommodating “vulnerable” workers, workers who live with vulnerable individuals, and workers whose childcare is unavailable due to COVID. Colorado’s Safer at Home Order is one example. Under this law, vulnerable individuals may not be compelled to provide in-person services.
However, an employer needs not provide an accommodation that eliminates an essential function of the job or that is an undue hardship. For example, a worker in a manufacturing facility whose only job is to work on an assembly line cannot perform his/her essential job duties by teleworking. On the other hand, an office worker may well be able to perform all essential job duties by teleworking. In the case of the manufacturing worker, the employer probably could require the worker to work in its facility, but probably not in the case of the office worker. If the manufacturing worker could not come to the workplace due to a disability or a vulnerability under a COVID law, the employer may be able to terminate him or her. Obviously, great care must be taken to ensure that the employer has taken all proper steps and termination should be a last resort.
Fear of returning to the workplace during the pandemic alone, is not enough to excuse a worker from working in the workplace. However, workers do have the right to refuse to work in an unsafe workplace. Terminating a worker for refusing to return to an unsafe workplace or for complaining about unsafe conditions could lead to liability under OSHA and other laws. Some states have enacted specific laws to protect workers from unsafe conditions relating to a public health emergency such as the COVID pandemic. See for example, the Colorado Public Health Emergency Whistleblower Act.
The bottom line is that employers can require employees to return to the workplace as long as they have a legitimate, nondiscriminatory reason for doing so, and as long as the workplace is safe. However, there are numerous exceptions and employers need to take great care to make sure they do not run afoul of the law, especially disability accommodation requirements and COVID-related state and local laws, which have specific rules for vulnerable workers. Now, more than ever, employers should consult with competent legal counsel to ensure compliance with these laws.