Now that businesses are beginning to re-open, many employees will likely be hesitant to return to work. Can an employer force an employee to physically come into the office? What if an employee wants to continue teleworking? The answer to questions such as these will depend on an employee’s exact circumstances.
Employees Who Are Medically Compromised or Live with Someone Who Is
Under the Americans with Disabilities Act (ADA), employers cannot discriminate against employees with disabilities. If you are concerned about returning to work because your disability makes you vulnerable, you should provide medical documentation to your employer and request an accommodation to work from home. Employers are required to consider your request and engage in an “interactive process” to find you a reasonable accommodation. If your employer determines that the “essential functions” of your job make telework infeasible, you can try requesting alternative accommodations, such as:
- PPE (e.g., facemasks, gloves, etc.)
- physical barriers (e.g., plexiglass) at your workstation
- relocating your workstation to an isolated area
Employees in this category may also be entitled to up to 80 hours of paid leave under the Families First Coronavirus Response Act (FFCRA) if a doctor advises them to self-quarantine (provided their employer has fewer than 500 employers). This paid sick leave is available not only to employees who are medically compromised, but also to employees who are caring for medically compromised individuals.
Employees Over 65
Age is not itself considered a “disability” under the ADA, and therefore employees in this category may not request an accommodation simply on the basis of their age. However, employees over the age of 65 may have medical conditions that place them at a higher risk. Employees in this situation who wish to work from home should obtain medical documentation and request a reasonable accommodation to work from home, as described above.
Employees Without Access To Childcare
Under the FFCRA, employees whose children’s schools/childcare providers are closed or unavailable due to COVID-19 are generally entitled to up to 12 weeks of emergency FMLA leave (provided their employer has fewer than 500 employers). Obviously, individuals who were already permitted to telework had no need to invoke this provision of the FFCRA. However, employees who are now being called back to work may choose to use their emergency FMLA leave to care for their children. The FFCRA makes this emergency leave available until the end of the year. Employees in this category may also be entitled to an additional 80 hours of paid sick leave under the FFCRA.
Employees Without Disabilities Who Are Afraid of Exposure to COVID-19
Generally, employees have no right to work from home simply because they are afraid of exposure to COVID-19. An exception may exist for employees who can provide medical documentation that they have an underlying condition such as anxiety (which may qualify as a disability under the ADA if it substantially limits one or more major life activities); however, employees in this category will generally be expected to return to work and will be subject to the ordinary attendance policy.
Employees Who Simply Prefer Teleworking
Like employees in the previous section, a simple preference to work from home cannot bind an employer, and employers may require an employee to physically come to work. Employees who simply prefer teleworking will likely be subject to their employers’ ordinary attendance policies. If these employees refuse to physically come in, despite orders from their employers, they should not be surprised if they face disciplinary action, including termination.
If you have any questions related to COVID-19, or any other aspect of employment law, contact Thatcher Law Firm at 301-850-1246. www.ThatcherLaw.com. Email me at [email protected].
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