With many states and counties opening back up, some employers are facing difficulties with an employee who refuses to return to work. Employers need to tread lightly when dealing with reluctant employees. The practicality and legality of these issues can be quite complex. It is crucial for employers to speak with their business attorney to ensure that all of the legal ramifications have been considered before taking next steps.
According to the Americans with Disabilities Act, or ADA, employers must consider any reasonable request for accommodation. This applies to any individual employee who refuses to return to work, regarding a legitimate disability. This act prohibits potential discrimination against people who may have physical or mental disabilities. As some employees may fall under the high-risk category for contracting COVID-19, some of these claims may be legitimate and must be considered. Examples of this include any employees who are elderly, have a preexisting condition, or any other serious comorbidity factors. These high-risk individuals may ask for various accommodations. These accommodations may include:
- working from home
- working from a space that allows greater social distance
- a modified work schedule that may allow greater distance from other employees
As an employer, if the employee requests nothing, then you do not need to provide any additional accommodations. However, if a request is made it is important to consider them individually. All requests for accommodation are not required to be met. If physical presence in the workplace is an essential part of job performance, then other accommodations or alternatives can be offered. The ADA does allow for some give and take between employer and employee. If the employee continues to reject all alternative accommodations, then the employer can consider termination as a viable option.
Additionally, employers are under no obligation to grant requests to work from home. Even if the work can be accomplished remotely. There are indeed certain legitimate business concerns that could preclude an employer from offering this as an option. Accountability, appropriate levels of supervision, enforcing labor laws, and security concerns are all examples of when this may not be a viable option.
The best advice that any business attorney can give in this situation is that proper communication and documentation is vital. All communications should be clear, concise, and direct. Additionally, employers need to document every conversation. This documentation will be the key to any potential legal situations that may arise from an employee’s unwillingness to return to the office environment. As long as every effort has been made to accommodate reasonable requests, employers are free to terminate any employee who remains unwilling to return to work. This falls under the category of job abandonment, so you, as the employer, are well within your legal rights. But proper documentation of your rebuffed efforts to accommodate must be readily available to you and your business attorney. Should the need for further action be required, you will have evidence at hand of your attempts to satisfy the employees requests.