Jaburg Wilk

As more employers are calling their remote workforces back to the workplace, it is likely they will run into employees who refuse to return to the office and wish to continue teleworking. Employers need to carefully evaluate the requests and follow these tips.

Understand Why Certain Employees Cannot or Do Not Wish to Return to Work

Naturally, certain workers may not be able to return to work, and may, or may not, be protected against needing to return to work, as early as others due to:

  • Diagnosis or experiencing symptoms of COVID-19.
  • Impediments to travel or commutes, including closed or reduced public transportation systems, dissolution of carpools and/or reduction of ride share
  • Child, dependent, or senior care obligations.
  • Membership in a vulnerable population.
  • Member of household in a vulnerable population.

Conversely, some employees may want to continue teleworking based on a newfound fondness from working from home and/or fear of returning to the workplace.

Develop a Policy to Address Requests to Continue Teleworking

Employers should develop a policy to review requests to continue teleworking. It is important that each request be reviewed on its own merits. When reviewing requests, employers should be cautious when reviewing anxiety or fear-based requests. In some cases, these could be a request for a reasonable accommodation based on a disability. In such cases, the employer should determine the reason for the employee’s fear and, if necessary, begin the interactive accommodation process. Employers should also prepare for an increase in requests and plan accordingly.

Consider Teleworking as a Continued Accommodation

Simply because employers implemented remote work to meet shut down orders and other COVID-19-related challenges does not mean the employer is required to allow employees to continue working from home indefinitely. An employer does not have a continuing legal duty to allow employees to work from home.

For example, if there is a disability-related limitation and the employer can effectively address the need with another form of reasonable accommodation at the workplace, the employer may choose that alternative to telework. Of course, the employer should carefully consider all accommodation requests. A good idea is for the employer to fully restore all the employee’s essential duties after the immediate crisis has passed, and then evaluate requests for accommodations under the usual ADA rules and the Families First Corona Virus Relief Act (FFCRA).

Employees with Household Members Part of a Vulnerable Population

There is no requirement under the ADA that employers provide accommodations to employees with family members who are at higher risk of severe illness if they contract COVID-19.

The employee, however, may qualify for paid leave under the FFCRA or Arizona paid sick time law. For example, the employee may be feeling anxious and depressed about the possibility of returning to work, especially if doing so may jeopardize the health of a vulnerable family member. Anxiety and depression can be a qualifying reason for taking leave under the Arizona paid sick time law.

Under the FFCRA, an employee is entitled to take paid leave if they are required to care for someone who has been advised by a healthcare provider to quarantine due to concerns related to COVID. An employer can avoid providing paid leave by allowing the employee to telework, assuming it is possible to telework and provide care at the same time.

Of course, there is no law that precludes employers from providing telework or other alternative work arrangements to its employees, so long as employers do not illegally discriminate in allowing employees to telework.

Be Cognizant of Potential Discrimination Claims

Employers should be aware of the high potential for discrimination claims during this time. For example, when providing accommodations to caregivers, employers should refrain from treating female caregivers differently than male caregivers. Likewise, employers should not discriminate against female employees when planning on how to reintegrate their workforce based on an assumption that female employees are more likely than male employees to have caregiving responsibilities.

Employers should be prepared for an influx of requests to continue to telework Employers should be wary of implementing a one-size-fits-all policy and should seek to analyze each request on a case-by-case basis.

Don’t Terminate Any Employee Who Refuses to Return to Work Without Getting Good Legal Advice.

Employers need to know and understand many Arizona and federal laws before deciding whether they may legally terminate an employee who refuses to return to work. Those laws are as follows:

  • ADA
  • Family Medical Leave Act - FMLA
  • A.R.S. § 23-1501
  • National Labor Relations Act
  • Arizona paid sick time law

If you are an employer and don’t understand the nuances of each of these laws, you need to get legal advice.