During the nearly two years of the COVID-19 scare, many businesses were still able to function because they allowed their employees to work from home. Now, thousands of workers are being called back to the workplace and this is creating tension in some offices around the country. Some individuals are still concerned with COVID-19 and refusing to return to work for fear of getting infected. In this article, we will examine the rights of the employee and the employer during this unique history that we are currently living.
Can a Boss Force Their Employees to Go Back to the Office?
While the short answer is “yes,” there is some gray area on both sides. Yes, workplaces have the right to set their own workplace policies. These rules can include when and where people work. If an employee chooses not to return to the workplace and instead continues to work at home, that action could be deemed insubordination, which could lead to termination.
Generally speaking, if an employee is just scared of the virus, he/she is unlikely to have a legally defensible excuse for refusing to work. However, employees can refuse to work if they believe the workplace conditions could cause them serious imminent harm. According to OSHA, a workplace needs to be free from recognized hazards that are causing or are likely to cause death or serious physical harm. If an employee is taking reasonable action to follow guidelines from the CDC and OSHA, it will be difficult for an employee to say that the area is a recognized hazard.
In an at-will state, like Florida, both the employee and the employer are presumed to be working of their own volition (at-will) with no long-term contractual obligation to each other. If an employee decides to quit and leave for another job, the employer cannot take action against that employee. Likewise, an employer can terminate without cause, so long as that reason isn’t illegal, such as discrimination or retaliation.
This would suggest that a worker can be terminated for refusing to return to work, as long as it is a result of consistent policy and not discriminatory.
Suggested Steps for Employers
It is important to have an open dialog with employees refusing to return to work. During this time, clearly outline the safety precautions that your company has put into place to assure that CDC, state, and local guidelines are being followed. Also, let the employees know of the necessary supplies that you have procured (masks, gloves, wipes, etc.). As with all communications with employees, the dialog should be documented. Many issues can be resolved through open communication with your employees.
If your employee still refuses to return to work, always contact legal counsel before a final decision is made.
Expertise to Protect Your Interests
I’m Rob Robinson, and I have spent the better part of 30 years practicing labor and employment law. If you have an issue concerning an employee(s) returning to your workplace, do not make a costly mistake that could do irreparable harm to your business. Contact my office immediately before critical decisions, such as termination, are made. My experience and knowledge of labor laws can guide you through the employment litigation process, saving you time and money. Together, we can seek an early, and favorable, resolution to your employment issues.