Did you get that e-mail yet about returning to the office? Are you thinking about pushing back? Don’t act too quickly because US employers can tell you to return to the office, according to employment lawyer Marisa Sandler.
Although it has been over a year since the Covid-19 pandemic began, many employers are still operating with remote workforces. With the number of administered vaccine doses increasing by the day, and hopes of herd immunity, employers may find themselves considering a resumption of business operations back in the physical office. But can employers require employees to return to the workplace? The answer is generally, yes.
Employers can require employees to return to the office and work the requested hours and days necessary to perform their jobs. An employee’s mere refusal to return to the workplace is not protected in most cases. If an at-will employee refuses to return to the workplace or work the requested hours or days, that employee’s employment generally can be terminated, unless the employee’s refusal is protected under applicable law or the termination would otherwise be unlawful.
Under what circumstances do you have a legal right to refuse to return to the office?
Under the Occupational Safety and Health Act (OSHA), an employee does not have a legal right to refuse to work merely because of a potentially unsafe condition in the workplace. An employee only has a legal right to refuse to return to the office if all of the following conditions are satisfied:
The employee asked the employer to eliminate the risk and the employer failed to do so;
The employee refused to work in ‘good faith‘ – meaning the employee has a genuine belief that an imminent danger exists;
A reasonable person would agree that there is a real danger of death or serious injury; and
There is not enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an Occupational Safety and Health Administration (‘OSHA‘) inspection.
Most working conditions would not give rise to a legal right to refuse to return to the office on the part of the employee, and especially now with the administration of Covid-19 vaccines.
What happens if a group of employees pushes back?
Employees nevertheless may be protected under the National Labor Relations Act (NLRA) if they collectively express concerns or complain about workplace health or safety conditions or refuse to return to work because of those concerns.
Whether an employee has a protected right to refuse to return to work because of Covid-19 will depend on whether the conduct constitutes “protected concerted activity” – that is, the employee is acting either in concert with at least one other employee or on behalf of other employees. It is important to recognize that employees in non-unionized workplaces enjoy rights to engage in protected concerted activity, and employers cannot retaliate against employees for doing so.
What an employer should do if an employee refuses to return to the workplace
Explore the reason for the employee’s refusal to return to work. Employees asked to physically return to the workplace often express concerns regarding safety measures. It is important to share information with employees regarding the safety measures being taken to keep employees safe and comply with (or go beyond what is required by) all applicable laws, guidance, and directives. Clear communication is key.
Address the employee’s fears with open dialogue and engage in the interactive process with an employee requesting an accommodation due to a disability or religious belief. For example, an employee may have a physical disability that requires modified protective gear, such as non-latex gloves, or a preexisting mental illness or disorder that has been exacerbated by the Covid-19 pandemic. Alternatively, an employee may have a religious belief that requires modified protective gear to allow for a religious garb. Employers should engage in an interactive dialogue with the employee to explore reasonable accommodations on a case-by-case basis.
Consider accommodations that may be provided to an employee who refuses to or is unable to return to work absent undue hardship. The Equal Employment Opportunity Commission has issued a list of suggested accommodations (see EEOC: What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws: Question G.5).
Consider how necessary it is for the employee to be at the workplace. The more successful an employee teleworked during the pandemic, the less likely their in-person presence is necessary.
Follow local, state, and federal laws and guidelines. Ensure compliance with local and state orders and applicable re-opening guidelines, as well as guidance from the Centers for Disease Control and Prevention, OSHA, and public health officials and authorities with respect to providing a safe and healthy workplace. Communicate that compliance to employees so that they are aware of the safety protocols being taken to protect against exposure in the workplace.
Carefully document communications with an employee who refuses to return to the workplace.
Evaluate the risks of terminating the employee. Those risks may include, among other things, claims against the employer for discrimination or retaliation, and potential low workplace morale. Employers should be particularly sensitive to, and mindful of discrimination and retaliation issues and claims that may arise, including discrimination claims based on an employee’s national origin, age, disability, pregnancy, parental or caregiver status, and religion, and retaliation claims under the OSH Act and NLRA.
From a practical standpoint, any return-to-work determination should be communicated to employees well in advance of implementing such a policy to provide employees with ample time to sufficiently plan for the return to the office, including getting vaccinated and arranging for childcare. Moreover, we recommend that a phased approach be considered and implemented - for instance, starting with a return to work in the physical office initially at two or three days a week for a specified period, while continuing to work remotely for the remainder of that period to allow employees to become acclimated and comfortable with being back in the office. Most employees have gotten used to working remotely for over a year now and will likely need to get out of the routine of rolling out of bed and wearing sweats, and back into the routine of grooming, dressing up, and commuting.
This is a transitional moment, employers should be thoughtful, transparent and communicative so everyone’s return to work is successful.
Marisa Sandler, employment lawyer and litigator at Tannenbaum Halpern Syracuse & Hirschtritt LLP Maryann Stallone, a partner at the firm, also contributed.