Now that the pandemic seems to be winding down, many employers are considering if it is the right time to ask their employees to return to work. But with COVID laws and regulations still in effect, as well as existing disability, discrimination, and whistleblower laws, the answer to this question is complicated. At Sanford Heisler Sharp, LLP, we understand that protecting your health at work is important, especially during a pandemic. That is why many people are concerned that if they refuse to return to work they could end up facing serious consequences or even be fired from their jobs. Keep reading to find out what rights you have if your employer asks you to return to work.
Am I Entitled to Additional Accommodations When I Return?
Some disabilities and mental health conditions can be exacerbated by COVID, which means employees might be entitled to additional accommodations or can ask their employer to alter existing accommodations when they return from the pandemic. This can include teleworking, socially-distanced workspaces, and access to PPE.
Many state and local COVID laws also require employers to accommodate “vulnerable” workers, workers who live with vulnerable individuals, and workers who lack access to childcare due to COVID. For example, under Colorado’s Safer at Home Order, vulnerable individuals can’t be compelled to provide in-person services.
However, employers don’t have to provide accommodation that would eliminate an essential function of the employee’s job or would create undue hardship. So if an employee works at a manufacturing facility and their job is to put together products on the assembly line, then they wouldn’t be able to perform their essential job duties remotely without creating undue hardship for the employer. As a result, the manufacturing employee can be required to work at the facility. However, if an employee works in an office, then their essential job duties can likely be done by teleworking, so the employer likely wouldn’t be able to require them to work in-office.
In the example of the manufacturing worker, the employer could terminate them if they are unable to come to the workplace because they have a disability or a vulnerability. However, the employer must take all of the proper steps, and termination should be a last resort .
What If I’m Afraid of Returning to Work Because of the Pandemic?
Just being afraid of returning to the workplace during the pandemic is not a valid excuse on its own to avoid being recalled by your employer. However, employees do have the right to refuse to work in an unsafe workplace. Under OSHA and federal/state laws, employers can face serious consequences if they fire a worker for refusing to return to an unsafe workplace or for complaining about unsafe conditions. Our team at Sanford Heisler Sharp, LLP proudly represent whistleblowers who need help holding their employers accountable for unsafe conditions relating to the COVID pandemic.
Can I Take a Leave of Absence If I Don’t Qualify for Remote Work?
If you have a legitimate high-risk condition, then your employer can choose to approve a leave of absence as an accommodation if remote work isn’t feasible for your job duties. According to the Equal Employment Opportunity Commission (EEOC), employers should use a leave of absence due to a disability as a second-to-last resort, with termination being the last resort.
According to the Centers for Disease Control and Prevention (CDC), people with the following conditions are at increased risk of severe illness from the virus that causes COVID-19:
- Chronic obstructive pulmonary disease
- Chronic kidney disease
- Down syndrome
- Serous heart conditions
- Weakened immune system from an organ transplant
- Sickle cell disease
- Type-2 diabetes
We Proudly Help Workers of all Backgrounds Assert Their Rights
Sanford Heisler Sharp is committed to representing clients who want to hold employers accountable for wrongdoing. We have a stellar reputation for securing outstanding results in a wide range of employment law cases. Whether you are facing retaliation for asking for a workplace accommodation or you were fired because of a disability or other types of discrimination, our highly skilled attorneys will fiercely advocate for your rights and pursue the justice your deserve.
If you would like to set up a case consultation with our legal team to discuss your concerns, please call (646) 681-7373 or contact us online today.