As we finally turn a corner in the pandemic, businesses are beginning to wonder how, when, and under what circumstances they can require their employees to report to their actual place of work.
As with most things pandemic, there is no slam-dunk answer. Rather, lawyer Eric J. Stark of the law firm Pond Lehockey notes that it’s a yes, but with caveats. “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.” However, there are several groups that may still be excluded from this blanket rule.
Specifically, workers who have a physical or mental disability that could be exacerbated by working during a pandemic may be eligible to continue working from home. These employees are covered under the Americans with Disabilities Act (ADA), which requires employers to enter the interactive process to identify a reasonable accommodation that allows the employee to work safely without causing “undue hardship” to the business.
A second group that may earn protections is that of vulnerable populations, which includes the elderly and those with chronic conditions. A number of states, including Colorado and Texas, have ordered protections for these populations and now also requires employers to also consider accommodations for these workers. In addition, pregnant workers are also eligible for accommodations in 30 states and five localities, while pregnant employees with a pregnancy-related disability can pursue accommodations under the ADA.
Where it really gets murky is in calling back employees who believe that their workplace is unsafe. Under the Occupational Safety and Health Administration (OSHA), employers are required to provide “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Since this is somewhat objective, our advice here is to follow federal, state, and local guidance as it pertains to Covid safety, such as requiring employees to wear masks when in the building, taking steps to allow employees to socially distance, and stepping up your cleaning game. Should an employee file a complaint with OSHA, the administration will inspect the workplace to determine whether it does present a hazard to your employee’s health.
In general, the pros note that you will pass the inspection and can fire any employee that refuses to return to work if you can demonstrate that you have made an effort to adopt new safety measures and are not actively preventing employees from following safe practices.
One exception to all these rules, however, lies with essential personnel. Now, when we think of essential personnel, we typically conjure up images of nurses and police officers, but the pandemic has proven that we need a whole host of folks to keep the world moving!
As such, essential industries can include infrastructure, manufacturing, and retail, among others. Not sure if your business should be considered essential? Check with your local authorities to see where you fall and what rules you’ll need to follow.
Now, as we have previously mentioned, the pandemic has taken a toll on all of us and now more than ever, employees are feeling anxious and even abandoned. As such, it would go a long way if you were able to offer your employees some flexibility as it pertains to their return-to-work plans. Resist the urge to force the “back to normal,” and instead think strategically about whether your workers can continue to work effectively from home or if their return can be phased in slowly over a series of days, weeks or even months. Your flexibility will go a long way towards assuaging your employee’s fears, as well as buy you some good will as you continue to adjust post-pandemic.