How Should an Employer Respond to an Employee Who Resists Returning to the Office?

Question 1 of a series of four burning coronavirus-related legal questions for 2021

The first thing you should find out the reason for their resistance:

1. Does the employee fear contracting COVID because of an existing condition?

   1. In this case, they may be eligible for leave under Family Medical Leave Act (FMLA).

   2. The employer should also initiate the American’s with Disabilities Act’s (ADA) process to determine if the issue qualifies as a disability and if the employer can provide an accommodation without undue hardship

2. Does the employee fear contracting COVID because a family member might be at risk

   1. In this case, you should follow the FMLA process to determine if an employee needs to have leave to care for a family member

   2. An ADA accommodation is not required in this situation.

3. If they have neither of these but still are fearful

   1. In this case, the employee has no federal protection and an employer can compel the employee to return to work.

In all these cases, not only do federal laws apply but also state laws, that differ from state to state.  Getting advice from a Labor Attorney is really critical to make sure you are following the law.

If you need help navigating the legal aspects of the coronavirus and its effects on your workforce, contact us.