Mark Pestronk
Q: In your Feb. 8 Legal Briefs column, "You can require employees to get vaccinated," you stated that, under the Americans with Disabilities Act (ADA), employers may need to make exceptions for employees who have medical conditions that would make them unable to get vaccinated. I have another ADA question. At present, all our employees are working from home, and only a few of them want to come back to the office. There is one employee in particular who I don't trust to work productively from home, so I want him to work in the office. Can he legally refuse to come in? What if he says that he is afraid of catching Covid-19? What if he has a medical condition that causes him to be at increased risk of severe illness?
A: If he has no medical condition, he cannot refuse to work in the office if you require him to. A generalized fear of catching Covid-19 does not count, so you could terminate his employment if he doesn't come back to the office.
On the other hand, he can legally refuse to comply if he has a particular safety concern about the workplace under the federal Occupational Safety and Health Act (OSHA), in which case he would be protected from being fired. To come under OSHA, which applies to all employers, no matter how few employees they have, the employee would need to cite a particular condition causing the employee's fear of death or injury, and that condition must be one that a reasonable person in similar circumstances would conclude poses a real danger of death or serious injury.
If you comply in good faith with the CDC guidelines for offices found here, I don't see how an employee in good health could reasonably believe that your office poses a "real danger of death or serious injury." In that case, it would not be unlawful to terminate the employee -- but you should anticipate that, if the employee files an OSHA complaint, your compliance could be investigated by the government.
Back to the ADA: The law applies to employers with 15 or more employees. Employees with preexisting medical conditions, such as those listed here, are protected persons under the ADA. This means that you must make "reasonable accommodations" for them, absent "undue hardship."
"Reasonable accommodations" means any change to the way the job is done or to the work environment that enables a person with a disability who is qualified for the job to perform the essential functions of that job and enjoy equal employment opportunities. "Undue hardship" means action requiring significant difficulty or expense when considered in light of the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer's operation.
If a protected employee files a complaint with the Equal Employment Opportunity Commission, you would have to prove that you would suffer undue hardship by allowing him to continue working from home, which may be tough to prove by objective evidence.