Can an Employer Fire Workers Who Are Scared to Return to the Office?

More employers are requiring employees to return to the office. If employees refuse, can they be disciplined or terminated?

According to legal experts, if the employee is just generally scared of the virus, the employee is unlikely to have a legally defensible excuse for refusing to work. However, employers should consider all reasons the employee might refuse to come into work before taking that step.

Keep in mind that the Biden administration recently said laid-off individuals who turn down work because of COVID-19 safety concerns may be eligible for unemployment benefits.

Telework is one possible ADA accommodation for an employee with a disability, but it’s not the only option. Employees who have a legitimate high-risk condition might be granted a leave of absence as an accommodation if telecommuting isn’t an option. The Equal Employment Opportunity Commission (EEOC) has taken the position that leave because of a disability should be a second-to-last resort with termination as the last resort. Don’t assume a leave of absence is the only option, however, or overlook the interactive process for identifying a reasonable accommodation, if needed. An employer may not require a qualified individual with a disability to accept an accommodation, the guidance notes.

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

Unfortunately, it may be necessary for you to discipline or terminate an employee. There are many reasons why this action may be justified. Even so, it is possible that taking disciplinary action may result in a discrimination charge or complaint.

Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

Ensuring that managers involved in discipline or termination decisions understand their responsibilities may help prevent discrimination.

  • Ensure that disciplinary and termination decisions are not based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history).
  • Ensure that disciplinary and termination decisions are not based on an employee’s decision to report discrimination, participate in a discrimination investigation or lawsuit, or oppose discrimination (for example, threatening to file a discrimination complaint).
  • Ensure that the decision to discipline or fire the employee is consistent with your discipline policy, or that you can justify treating the employee differently.
  • For example, your discipline policy may state that employees who are absent from work without authorization for three days will receive a warning. You may decide to waive the warning for an otherwise reliable employee who missed three days of work because of an unexpected family emergency.
  • Consider documenting the reason(s) for the discipline or termination.
    • This may help you defend your business if a discrimination charge or complaint is filed.
  • To prevent misunderstandings, it may be helpful to explain the reason(s) for the discipline or termination decision to the employee.
  • Respond promptly and effectively to discrimination complaints regarding disciplinary action.
  • Retain any disciplinary records as required by law.
    • If an EEOC charge of discrimination is filed, keep relevant records until the charge is resolved.