A mere 11% of organizations are expecting all of their employees to return to the workplace at some point. That’s according to a recent survey conducted by the National Association for Business Economics. The survey also found that nearly two-thirds of employers have allowed the vast majority of employees to work remotely during the COVID-19 pandemic.
With two vaccines currently in circulation and some states beginning to ease up on COVID-related restrictions — despite the fact that the virus and its mutation are showing no signs of letting up and death rates continue to soar in a number of areas — many people are wondering: Will we be asked or required to return to the physical workplace in 2021?
There’s no short or clear answer. Keep reading for responses to common questions about the COVID workplace, laws that are in place to protect you and your coworkers and other information concerning employers, employees and the pandemic.
Based on the above data, it appears fairly unlikely that most businesses and organizations will require their employees to return to the office. In some cases, they may not even allow their workers to return at all — some have even closed or not renewed leases on their brick-and-mortar locations.
However, if your employer does tell you that you have to be physically present to do your job, then you don’t have many options to contest the requirement, unless you’re protected by certain laws such as the Americans with Disabilities Act (ADA) and have a condition that would make exposure to COVID particularly dangerous for you and your health (more on that below). Generally speaking, though, your employer can insist that you return to the workplace.
Those employers who do ask or require their employees to return (or even offer the option for employees to voluntarily return) to the workplace will likely impose several rules and restrictions to protect their workers and themselves and make their offices a safe space for everyone. These rules may already be in place for organizations that have employees currently working on-site, such as those deemed essential services.
Personal protective equipment (PPE), including face masks, will probably be mandatory for the foreseeable future. Some employers may also require the use of latex gloves or hand sanitizer and additional PPE; they may even provide these resources to employees working on-site. If you have a medical condition that makes it impossible for you to meet these requirements, your employer may consider making accommodations for you, such as continuing to allow you to continue to work from home.
Many companies will conduct daily temperature checks as well and will send employees home if they present with a fever. Additionally, they may require employees to be tested for COVID routinely. (Your employer is not allowed to demand antibody tests, which indicate whether or not you have had the virus previously.) If you do contract the virus, your employer will likely require you to submit a negative test result after you’ve quarantined and before you’re allowed to come back into the workplace.
Federally speaking, yes, you can indeed be terminated if you refuse to return to work out of fear of contracting COVID — at least you can be if you’re an at-will employee, as a majority of workers are, which means your employee can legally terminate you for nearly any reason, with some notable exceptions described below.
Some states, however, have taken strides to protect employees who stay home from the workplace. For example, Governor Gretchen Whitmer issued Executive Order 2020-36 in April of 2020, preventing employers in the state from terminating or disciplining employees from missing work because of potential exposure to COVID, showing symptoms of having contracted the virus or testing positive for the virus. The order excludes healthcare workers who are, by nature of their jobs, routinely at-risk of exposure to COVID. The order does not encompass workers who fear exposure but have no reason to believe they actually have been exposed, however.
In general, employees must have a legal justification for staying away from the workplace. The laws that are most applicable to COVID are:
The ADA requires employers to make reasonable accommodations for employees who have documented disabilities. Many health conditions, such as chronic kidney disease, cardiovascular disease, diabetes, immunodeficiency and others, put people at a higher risk of contracting COVID and experiencing serious complications if they do contract the virus.
If you have this or another condition that is protected by the ADA and will put you at serious risk for harm if you are exposed to COVID, your employer is required to make reasonable accommodations to protect you from exposure, such as allowing you to work from home. It’s highly advised that you obtain documentation of your condition from a qualified healthcare provider to serve as evidence of your condition to your employer.
The Pregnancy Discrimination Act requires your employer to apply the same accommodations to pregnant employees.
Under the OSH Act, workers can refuse to work or perform specific tasks that they believe will endanger them. However, there are many conditions that must be met in order to claim this protection. For example, the employee is required to ask the employer to remove the danger, and this request must be refused by the employer. But if the employer makes strides to protect employees such as enforcing PPE usage and social distancing guidelines, it’s very difficult to prove a violation of the OSH Act.
Employees must be able to cite specific dangers in their place of work. Being anxious or concerned about the pandemic in general is not sufficient proof that your employer is putting you in harm’s way.
NLRA specifically applies to workers in the private sector. This law permits employees who deem their workplace unsafe to engage in protected concerted activities (PCA), such as banding together and striking, without fear of retaliation from their employers. NLRA applies to nearly all private employers, whether or not they are unionized.
FMLA applies to public agencies, elementary and secondary schools and private employers with at least 50 employees. Under the law, qualifying employees are guaranteed up to 12 weeks of unpaid leave per year to take medical leave because of a serious health condition or to care for an immediate family member, such as a child, spouse or parent, with a serious health condition, along with the birth or adoption of a child. Contracting COVID or caring for a family member with COVID would likely fall into the category of a serious health condition.
In order to qualify for FMLA leave, the employee must have worked for their employer for at least a full year and 1,250 hours over the past 12 months. They must also work at a workplace where the company has 50 or more employees within 75 miles.
Many states have additional FMLA protections. Fear of exposure to COVID is not, however, covered by FMLA.
Unfortunately, FFCRA, which required certain employers to grant employees paid sick leave or expanded FMLA protections for reasons related to COVID, expired at the end of 2020. However, although the law is no longer mandatory, employers who voluntarily provide paid leave to employees due to COVID are entitled to tax credits through March 31, 2021.
For the most part, companies can require employees to get vaccinated. In 1905, the Supreme Court case Jacobson v. Massachusetts made it legal for employers and local governments to require vaccines in response to a smallpox vaccine requirement. In its decision, the Supreme Court ruled that vaccines may be mandated to protect the “safety of the general public.
Still, it’s unlikely that employers will impose this rule unless there is a legitimate business reason to do so. For example, many healthcare facilities have long required that employees get the flu vaccine annually and will require them to receive the COVID vaccination as well. Frontline essential workers who routinely interact with clients and customers may be required to do so as well.
There are exceptions, such as employees with legitimate health concerns or religious reasons that would make them unable or unwilling to get the vaccine. Usually, these employees are protected by the ADA or Title VII of the Civil Rights Act of 1964. In these cases, once again, employers must make reasonable accommodations, which might involve allowing these employees to work from home or wear PPE when on-site as an alternative to being vaccinated.
In short, it is possible for you to be terminated if you refuse to get vaccinated. Of course, the same protections under the ADA and Title VII, along with additional laws that concern discrimination, apply here, so if you’re protected by these laws, you may not be fired in this situation.
Just as it is unlikely that an employer will require you to come to the workplace unless there’s a valid business reason for doing so, such as if you’re a healthcare worker, employers probably won’t terminate you for refusing to be vaccinated but may impose requirements, such as mandating that you work remotely and stay away from the physical workplace unless or until you receive the vaccination.
If they’re unable to make a reasonable accommodation for you to continue to do your job without presenting danger or health risks to others, then they may well elect to terminate you, unless you’re protected by antidiscrimination laws.
As of now, many employers are looking at the COVID-19 pandemic from many different angles and considering different scenarios for keeping their businesses running smoothly and protecting all of their employees. For some, that could mean a permanent shift to remote work.
You’ve likely already seen some businesses, particularly smaller ones, that have shuttered their physical workplaces permanently and plan to operate entirely remotely. Many larger corporations, such as Twitter, Facebook and Shopify, have announced optional or required work-from-home-forever policies. (Some of these policies don’t apply to all employees.) Others have closed their workplaces until later this year and will reassess the situation at that announced date, while many plan to adopt a hybrid model, where employees work from home partially to avoid overcrowding the workspace, at that point.
Still, despite the many benefits of working remotely aside from the reduced risk of COVID exposure, such as no commute time and an increase in productivity, a number of employees miss working on-site, which provides opportunities to interact and socialize with colleagues, among other advantages. Moreover, for many, working from home has meant less of a work-life balance and less of a separation between their personal and professional lives.
"I do think that eventually, most workers will return to an in-person job, at least for the vast majority of the economy,” said Andrew Chamberlain, chief economist at Glassdoor.
Eventually, however, is ambiguous. Right now, we have two viable vaccines, and they are continuing to be rolled out, with most people still not eligible to receive their doses yet. Once a majority of individuals are able to be vaccinated, employers will likely to begin more seriously considering a return to the workplace, weighing factors such as employee preferences, costs, risks and more.
In addition to existing federal laws that protect workers, there are a number of state and local laws that apply to employment during the COVID-19 pandemic. Whether or not the federal laws described above encompass your particular situation, it’s always a good idea to look into additional mandates, local or otherwise, that might affect you.
If your employer is insisting that you return to the office and you’re concerned about exposure to COVID, it never hurts to try speaking to them about your situation. Unless it’s absolutely imperative for you to be on-site to fulfill your job responsibilities, many employers will be willing to work with you and be flexible to ensure that you feel safe and comfortable.