Can employers force employees to return to work? – Employment and HR

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United States: Can employers force employees to return to work?

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As the pandemic slowly draws to a close, many employers are wondering if it’s time to ask their employees to return to the workplace. With many COVID laws and regulations still in place, 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 working conditions, employers may have to make reasonable accommodations for disabilities (or religious practices). During a pandemic, adapting to disabilities becomes more complicated.

Certain disabilities (including mental health disorders) may be exacerbated by COVID and, therefore, employees may be entitled to modified or additional accommodations, including, potentially, telecommuting, socially remote workspaces, and employment. use of PPE. Additionally, many state and local COVID laws require housing for “vulnerable” workers, workers who live with vulnerable people, and workers whose child care is not available due to COVID. Colorado’s Safer at Home order is one example. Under this law, vulnerable people cannot be compelled to provide services in person.

However, an employer is not required to provide an accommodation that eliminates an essential function of the job or constitutes undue hardship. For example, a worker in a manufacturing plant whose only job is to work on an assembly line cannot perform essential tasks by telecommuting. On the other hand, an office worker may very well be able to perform all the essential tasks of telecommuting. In the case of the manufacturing worker, the employer could probably require the worker to work in their factory, but probably not in the case of the office worker. If the manufacturing worker was unable to come to the workplace due to a disability or vulnerability under a COVID law, the employer may be able to fire them. Obviously, great care must be taken to ensure that the employer has taken all appropriate steps and termination should be a last resort.

Fear of returning to work during the pandemic alone is not enough to excuse a worker from working in the workplace. However, workers have the right to refuse to work in an unsafe workplace. Firing a worker for refusing to return to an unsafe workplace or for complaining about unsafe conditions could result in liability under OSHA and other laws. Some states have enacted specific laws to protect workers from unsafe conditions related 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, non-discriminatory reason for doing so, and as long as the workplace is safe. However, there are many exceptions and employers should be very careful not to break the law, especially disability accommodation requirements and national and local laws related to COVID, which have specific rules for them. vulnerable workers. Now, more than ever, employers should seek competent legal counsel to ensure compliance with these laws.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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