by Jared Sugerman & Gregory Tumolo | As employees are increasingly being asked to transition back to the workplace in the midst of an ongoing global pandemic, some are expressing concern regarding the novel coronavirus and whether being in the office on a full- or part-time basis is safe.  In some instances, individual workers are declining to return or are requesting permanent remote work assignments because of fear of contagion.

When an employee expresses concern about returning to the workplace or even refuses to return due to fear of contracting COVID-19, it is important for employers to ask whether the employee is articulating a generalized fear of contagion (one many of us share) versus a specific reason that is protected by law.  The employee’s answer will determine how the employer responds.

An employee’s generalized fear of contracting the coronavirus at work will not excuse the employee’s refusal to work when recalled by their employer.  Accordingly, an employee’s failure to report back to the office when asked to do following a furlough, a leave of absence under the Families First Coronavirus Response Act (FFCRA), or a remote work assignment ordinarily will be grounds for discipline under the employer’s attendance policy, up to and including termination.  However, where the employee’s reluctance or refusal to return to the workplace is based on fear of COVID-19 that is concrete and specific, the employee’s fear may warrant a different response from the employer.

• Under the federal Occupational Safety and Health Act, employees can refuse to work if they reasonably believe that they are in “imminent danger.”  Rules and regulations promulgated by the Occupational Safety and Health Administration (OSHA) require proof of a condition or practice that could reasonably be expected to cause death or serious physical harm immediately or within a short period of time, and which danger cannot be eliminated through enforcement procedures, such as an inspection by OSHA.  Most working conditions in an office setting would not meet this high bar.
• Under the Americans with Disabilities Act (ADA), employers must reasonably accommodate employees with pre-existing health conditions that place them at heightened risk from COVID-19.  If an employee requests an accommodation in the form of a temporary or permanent remote work assignment, leave from work, or modifications to the employee’s work environment (e.g., change in workstation location, installation of Plexiglass separators, additional personal protective equipment), the employer must engage them in an interactive dialogue regarding the accommodation request before responding.  Failure to engage in this interactive process may result in liability under the ADA.
• The National Labor Relations Act (NLRA) also confers legal rights on employees scared to return to the workplace.  Even in non-unionized workplaces, employees have the right to engage in protected concerted activity—including the right to join together to refuse to work in unsafe conditions.  Provided that employees’ refusal to work is reasonable and based on a good faith belief that their working conditions are unsafe, the employees in question cannot be disciplined or terminated under the NLRA.

By implementing all required federal, state, and local public health guidance to prevent infection and by communicating the employer’s commitment to maintaining a healthy and safe workplace, employers may be able to alleviate some of the fears expressed by returning employees.  However, if these actions are not enough to put an employee’s mind at ease, employers will need to dig deeper to find out whether further action is required to avoid violating the employee’s rights.

For further guidance on issues concerning return to work during the COVID-19 pandemic, reach out to Jared Sugerman here or call Duffy & Sweeney at 401-455-0700.