Can employers mandate that employees return to the workplace?
Employers may, in general, require that employees return to the workplace or forfeit their jobs. Employers, however, should proceed with caution and might want to consult with a lawyer before issuing an ultimatum. Employees may have some rights, particularly when it comes to health issues and disabilities. Employers who ignore valid requests for reasonable accommodations for a disability or for a vaccine exemption risk running afoul of employment laws.
What are my legal rights if an employee refuses to return to work?
In general, an employee who refuses to return to work may be fired. However, in some circumstances, employees will be eligible for FMLA or paid sick leave. It is important to understand what relief your employees qualify for and make sure that your policies are documented clearly in your Employee Handbook.
There may also be protections for high-risk populations, who may include:
- Employees who are considered "older adults"
- Those who have chronic medical conditions, including heart disease, diabetes, or lung diseases
- Those who have auto-immune disorders, including rheumatoid arthritis, diabetes, or lupus
Also, keep in mind that recent CDC guidance on how long asymptomatic individuals should self-isolate after testing positive for COVID-19 has changed from 10 days to five days. The guidance has also changed regarding individuals who have been exposed to a COVID-positive person. Employers may want to go with the CDC's current guidance, stick with the CDC's previous (more conservative) guidance, or ask that the employee have a negative test before returning to work on top of the suggested time for self-isolation.
If an employee pushes back on a return to work requirement following self-isolation due to a COVID exposure or a positive COVID test, the employer may want to look over the CDC guidance in detail and talk to a lawyer for further advice.
How can an employer confirm that employees are healthy?
As an employer, you are typically within your rights to:
- Ask employees to provide proof of their health by requiring them to submit to a medical exam, such as taking their temperature
- Provide a physician's note stating that the employee is fit to return to work
- Demand the employee indicate that they have been free of symptoms for a specific time period, using a screening form or other format.
Keep in mind, you must be able to provide objective evidence that the employee's condition would prevent them from adequately carrying out their assigned job duties or that it poses a direct threat to others in the workplace.
Where can I find information about COVID safety requirements for my business?
Operating restrictions for your business are, for the most part, determined by your state and local public health orders. Mask mandates, for indoor settings in particular, are increasing across larger metropolitan areas across the U.S. Check with your state or local public health agency for guidance on possible mask mandates in your location.
If you have any uncertainty about HR best practices in relation to the pandemic, check out the Coronavirus Legal Center and ask a lawyer for free.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.