As the Covid pandemic starts to come to an end (wait a minute, the omicron variant kinda brought it back : P), many companies are starting to plan the “go back to the office.” Lots of readers are asking us: can my employer REQUIRE me to go back to the office? Yes and no. Here are a few considerations.
1. You can’t be forced to go back to work if you have a legitimate health risk
According to this article, while saying “I am scared to go back to work for fear of contracting Covid” is not sufficient, if the employee has a higher risk of contracting Covid due to certain health conditions, the employer cannot force the employee to go back. The same holds true if the employee herself or himself does not have a health risk but lives with someone who does.
2. Your employer is required by law to provide a safe and healthy workplace but can require you to go back to the office
Short of any health risks described above, the threshold is whether the employer is providing a safe and healthy workplace. If the employer is taking precautions and ensuring that the workplace is safe and healthy, merely fear alone is not sufficient for employees to refuse to report to work, especially if such work must be performed on-site physically. The employer has the right to determine where and how work is performed. See more details from this article here.
3. Requesting remote work and/or a leave of absence may be an alternative
For office workers whose work can be performed remotely with efficiency, a request to work remotely may be a short or long-term solution. In the alternative, employees may also request a leave of absence for the time being to evaluate the situation later. For employers, such requests must be evaluated and granted fairly across the board to avoid any kind of discrimination.
4. While employees without any other excuse can be terminated for refusing to go back to work, do so with a lot of precaution
If communication and accommodation cannot resolve the situation, then the last resort is to consider terminating the employees who refuse to report back to work. However, employers should proceed with lots of caution to avoid any kind of claims for retaliation, discrimination, and other causes of action. For CA employers, check out the laws and regulations here.