As states across the country are easing stay-at-home restrictions imposed because of COVID-19 and the economy is beginning to reopen, many businesses are looking to bring their employees back to the workplace. While some employees are enthusiastic about returning to work, employers are finding that others are anxious about returning – or in some cases even are refusing to return to the workplace and/or are asking to continue to telework. There are a variety of understandable reasons for this anxiety, including, for example, employees’ fear about their own health or the health of their family members, or an ongoing lack of child care or the perception that available care may not be safe. Many employers are therefore struggling to understand their legal obligations regarding these employees and to maintain the morale of their workforce, while at the same time keeping their businesses fully staffed and as productive as possible.
On June 11, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance for employers, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, to address many of these situations. These Q&As can be found here. Below, we have answered some of the most common legal questions that we are receiving from employers regarding employees who are reluctant or unwilling to return to the workplace.
1. Some of my company’s employees have indicated that they are afraid to return to the office and want to continue working from home. Can I require them to return?
Absent an exception described below, an employee cannot refuse to return to work at the employer’s workplace simply because of a general fear of contracting COVID-19. With that being said, employers must take appropriate precautions to assure the employees’ safety, as directed by federal and state OSHA requirements and state and local governmental orders.
2. Must I allow an employee who the CDC deems at risk because of an underlying medical condition to continue to telework?
It depends. Pursuant to the Americans with Disabilities Act (“ADA”), an employer who receives a request for a reasonable accommodation from an employee with a disability must engage in an interactive process to determine whether the impairment is a disability and what sorts of accommodations the employer may make to enable the employee to do his or her job. The employer may ask for information from the employee’s health care provider to assist in this analysis. For some positions, it may be a reasonable accommodation for the employee to continue to work remotely, if the work can be performed effectively. As explained by the EEOC, for other roles, the employer may be able to limit the risk at the workplace by implementing “changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.” The EEOC further noted: “Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.” After engaging in the interactive process prescribed by the ADA, an employer must provide a reasonable accommodation for a worker who is disabled unless it would cause the employer undue hardship.
3. Must I allow an employee who does not have a disability to continue teleworking because they have a family member at home who is at high risk for contracting COVID-19 due to an underlying health condition?
In its recent update, the EEOC added a Q&A to its guidance to address this particular scenario, which many employers are facing. As explained by the EEOC: “The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.” With this said, employers need to continue to be mindful of any related obligations under the Family and Medical Leave Act regarding an eligible employee’s need to care for a family member with a serious health condition.
4. The CDC has indicated that individuals age 65 and over are at a higher risk for contracting COVID-19. Should I require all older employees to stay home?
No. As the EEOC stated in its June 11, 2020 update, the Age Discrimination in Employment Act (“ADEA”) “would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.“ The EEOC went on to note, however, that “employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”
5. We are requiring all of our employees to wear face coverings at work. One of our employees refuses to return to the office because she thinks that masks are uncomfortable and that she will not be able to work effectively. Can we force her to do so?
As a general matter, an employer is allowed to require its employees to wear masks or other face coverings, gloves, or other protective gear to aid in the prevention of the spread of infection, so long as they comply with any relevant OSHA requirements (and note that certain kinds of masks may be deemed “respirators” or “PPE” that trigger certain OSHA requirements). The employer may take disciplinary action against an employee who refuses to follow the employer’s safety rules. However, if an employee has a disability that would prevent the employee from wearing a mask, such as certain respiratory ailments, the employer should engage with the employee to determine whether there are any reasonable accommodations, such as wearing a different type of face covering, ongoing teleworking or, if necessary, granting the employee an exception to the mask requirement.
6. Several of our employees have indicated that they cannot return to work in the office because they do not have childcare. Am I required to allow them to continue working remotely?
Absent the need for a reasonable accommodation in connection with a disability as described above, an employer can require that its employees work on-site, and childcare is generally considered to be the responsibility of the employee. Employers should be mindful, however, that if the employee’s regular paid childcare provider is unavailable because of COVID-19 and the employee is not allowed to telework, the employee may be entitled to up to twelve weeks of paid leave (up to a maximum of $200 per day) pursuant to the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which were enacted as a part of the Families First Coronavirus Response Act. See Coronavirus Emergency Spurs Mandatory Paid Sick Leave Legislation for more information about that law.
Of course, the situations in which these questions arise vary greatly and are highly fact-specific. Moreover, employers must balance their legal obligations with their need to maintain a motivated, talented workforce, which often tips the scales in favor of offering more flexibility than legally required, particularly in these challenging times.
If you have any questions regarding your business’s return to work plan and obligations, please contact a member of AGG’s Employment Law Team.