June 2021 Business Litigation Update

As the country continues to open back up, employers are left with looming questions about bringing their employees back to the workplace.

For example, can an employer require all returning employees to be vaccinated?  Can an employer require all employees to return to the office, even if some employees are not vaccinated and do not intend to get vaccinated?  Can an employer terminate an employee who is unwilling to return to work because of COVID concerns?

Unfortunately, there are no black and white answers to all of these questions.  And, there are multiple considerations for each issue.

1. Can Employers Require Their Employees to Be Vaccinated? Technically, the answer is yes; however, there are exceptions.  Employers can encourage their employees to get vaccinated and they can even require it, but whatever policy an employer puts in place must comply with ADA guidelines.  This means that employees with a disability could be excused from the requirement and accommodations would need to be made.  Employees can also legally refuse the vaccine due to religious reasons.
2. Can an Employer Require All Employees to Return to Work?  If we were not in the middle of a pandemic, the simple answer to this would be yes.  Employers can require their employees to work in the office, as long as they provide accommodations for disabilities.  But with the pandemic, the answer to this question is more complex as accommodations for disabilities become more difficult, more vulnerable workers might not be safe in the workplace, and there are still employees without access to full time childcare due to remote learning.  So, while employers can require workers to return, there are exceptions that will need to be made.
3. Can an Employer Terminate Employees Who Refuse to Return? Again, this is a complex question.  If an at-will employee is simply hesitant or scared to return, then an employer does have the right to terminate.  However, if the employee has underlying medical conditions or if the employee feels that the workplace is unsafe, the employee has the right to refuse to return to work.  It is also important to consider if the employee would be putting a high risk member of their household in danger by returning to the workplace.

Bottom line: Employers are facing numerous issues as they look for the safest way to bring their employees back to work.  It can be difficult to navigate the various considerations and accommodations that must be considered and made, and there is no one size fits all policy that works for all employers and all employees.

Under these circumstances, it’s important for employers to engage the help of outside experts and advisors to craft appropriate policies that include exceptions and protections for all of their workers, and follow the law.