Yes, employers can require their employees to return to the office – as long as their physical workplace is safe, and they provide reasonable accommodations for employees with disabilities.
All employees have the right to a safe workplace. To maintain a safe workplace, employers must adhere to coronavirus disease (COVID-19) guidelines from the Occupational Safety and Health Administration (OSHA) and meet other workplace safety standards.
If employees have concerns, they should alert their employers. Employees may not be fired for complaining about workplace safety, nor can they be fired for being a “whistleblower,” and escalating their complaint to the next level.
COVID-19 Safety Requirements
During the COVID-19 pandemic, OSHA requires employers to follow certain guidelines at the state and federal levels. Depending on where you live and work, these guidelines may include:
- Facilitating employee vaccinations (paid time off to get vaccinated and recover from vaccine side effects)
- Instructing infected workers, unvaccinated workers who have been exposed to COVID-19, and all workers with COVID-19 symptoms to stay home from work
- Implementing physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers
- Providing workers with face coverings and other personal protective equipment (PPE)
- Educating and training workers on COVID-19 policies and procedures (in accessible formats and languages they understand)
- Requiring masks for unvaccinated employees, customers, visitors, and guests – or for everyone in communities with high transmission rates
- Maintaining ventilation systems
- Performing routine cleaning and disinfection
- Recording and reporting COVID-19 infections and deaths
- Protecting employees from retaliation and setting up a system where employees can anonymously voice concerns about COVID-19-related hazards
You have every right to speak up if you do not feel safe at work. If you get fired as a result, consult an attorney about filing a wrongful termination lawsuit.
Under the Americans with Disabilities Act (ADA), employees with disabilities are entitled to reasonable accommodations. If an employee is immunocompromised, for example, they may ask to work from home or from a private office to minimize their risk of catching COVID-19.
Remember that the ADA covers employees with mental and physical disabilities, so if someone is diagnosed with an anxiety disorder and has severe anxiety about exposure to COVID-19, working from home may be a reasonable accommodation for them, as well.
Employers do not have to provide accommodations that eliminate essential job functions or require “undue hardship,” so some employers may place employees on leave until they can return to the office. Termination should be the last resort, but if someone cannot come back to the workplace, and the employer cannot provide reasonable accommodations, that person could be fired.
An employer’s decision surrounding reasonable accommodations should be uniform. For instance, an employer may not offer accommodations to an immunocompromised individual and fire an employee with an anxiety disorder.
Failure to provide reasonable accommodations could lead to disability discrimination lawsuits.
Apple and a Note About Unionizing
At Apple, many employees do not want to return to the physical workplace. Some of them have organized, circulating petitions and writing letters to management. Although employers can fire employees for refusing to return to the office, employees cannot be fired for organizing or joining a union.
Due to the Delta variant of the COVID-19 virus, Apple and other tech companies have chosen to delay their return to the office, but employers and employees alike should watch them carefully.
What to Watch Out For
Employees should know their rights and legal options – especially if they have a disability or safety concerns, and employers should be wary of discrimination and wrongful terminations.
If you need help standing up for your rights in the workplace, please contact Attorney Bill Marder at Polaris Law Group. Our team has over 25 years of legal experience, takes cases other firms will not, and offers free consultations to evaluate your case.