Amid this pandemic, going back to work is not the same as going back to the workplace

Mon, Mar 21, 2022 (2 a.m.)

In the first week of March, the Centers for Disease Control and Prevention (CDC) adjusted COVID-19 guidance, chronologically following a groundswell of state and city officials’ decisions to lift COVID-19 restrictions. In Nevada, Gov. Steve Sisolak lifted the indoor mask mandate for those with two vaccine shots. Private employers who had not required employees to return to the workplace or who limited the number of employees that could return, began setting “Return to Workplace” dates.

Requiring all employees to return to the workplace, however, is not as straightforward as sending all employees home to work in March 2020 was. Shutting down operations in 2020 generally followed an email directive and may have required ensuring employees had hardware, software and bandwidth. Where and how the employees set up their “at home” office/facility was up to each employee and their situation. Transitioning back to the office, however, does not provide the employee as much autonomy and flexibility. Despite the renewed opportunity for camaraderie and team-focused productivity presented by “Back to the Workplace” emails, the result is more potential for conflict and more accommodation requests.

Ann Morgan

Ann Morgan

Just as employees had to learn how to work with family members in the next room or the next seat at the dining room table, they may have to relearn how to work with supervisors and co-workers in the next office or cubicle. Workers who stayed in the office may resent perceived “entitlement” of those who worked from home and may not believe that remote workers worked as hard. Those who worked from home may resent the perceived “advancement” of those who stayed at the office and may believe that their work is not as valued.

For some employees, however, a return to the workplace policy may be seen as subjecting them to an unsafe work condition. Those who may have a lower risk tolerance and believe that returning unnecessarily exposes them (or those in their immediate circle with underlying health conditions) to the virus, may resist a directive to return.

Does the law require employers to accommodate these concerns and allow those who do not want to return to the workplace to continue to work remotely?

Employees whose basis for not returning to the workplace is a “preference” to work remotely can, in fact, be required to return to work. All employers have the right to determine where the work will be done, provided the location is safe and there are not other nondiscriminatory reasons for requiring the work be done at the location. That returning employees may have a hard time adjusting to their fellow employees should be dealt with as any pre-COVID employee conflict was.

Employees whose basis for not returning to the workplace is based on a fear of infection or an underlying condition that makes them, or those with whom they live, vulnerable to the virus, need to be viewed through the lens of the Americans with Disabilities Act (ADA).

The ADA prohibits discrimination against people with disabilities in several areas. In the employment arena, the key components are:

1) Does the individual have a disability?

2) Is the individual qualified to perform the essential functions of the job?

3) Can the individual perform the essential functions of the job with reasonable accommodations?

The Equal Employment Opportunity Commission’s (EEOC) guidance provides that employers do not have to make accommodations for employees whose basis for not returning to the workplace is a fear of contracting the virus. The answer may not be the same, however, for employees with a “disability,” defined as a “physical or mental impairment that substantially limits one or more major life activities.” Employees with a disability may not be discriminated against. Rather, employers must make a reasonable accommodation to the employee if doing so will enable the employee to perform the essential functions of the job and such accommodation will not impose an “undue hardship on the operation of the business.”

Just because an employee with a disability was able to do their job remotely as a result of a work-from-home directive, however, does not make continued remote working a “reasonable accommodation.” The iterative conversation required by the ADA pre-COVID remains a requirement, and the employer is entitled to understand why the employee’s disability requires her or him to continue to work remotely, particularly if the employee was able to perform the essential functions of the job from the workplace prior to the work-from-home directive. Indeed, that an employer temporarily allowed its employees to work remotely to protect them from COVID-19 does not mean it is required to continue that policy, particularly when the risks can be or may have been mitigated.

What both the “preference” scenario and the “disability” scenario have in common is the need for the employer to effectively communicate with employees. It may be that a rolling return will better enable employees to get comfortable working with their co-workers again. It may be helpful, in addition to emails, to hold an “all hands” meeting to facilitate a discussion of concerns. It may be, however, that the understanding many employers received as a result of their employees successfully and productively working from home does not require employees being back at the workplace to get back to work.

Ann Morgan is the employment and labor director with the law firm Fennemore.

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This story appeared in Las Vegas Weekly.

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