As Americans line up to get vaccinated against COVID-19 and the infection rates decline, more businesses are opening up or planning for a full return. For some employees, returning to work may be logistically not possible or may feel unsafe and stressful. This uncertainty has many wondering if their employer can force employees back to the workplace.
Can My Employer Force Me to Go Back to the Office?
With some exception, the short answer is “yes.” In “employment at will” states like New Jersey, employees can be fired for what may seem like a good reason, a bad reason or no reason at all. In theory, if you are an “at will” employee you could be fired for any reason, so long as that reason isn’t illegal such as discrimination or retaliation.
If you are an at-will employee, your employer can mandate that you return the office or you could face termination for your refusal. That being said, many employers may have new policies or new understanding in the aftermath of the pandemic. Communicating with your employer your concerns and needs is generally a good idea. And, if an exception applies to your scenario, you may have rights to continue working remotely.
What are the Exceptions for Employees Who Refuse to Return to the Workplace?
Employees in High-Risk Groups or With Disabilities
If you have a qualifying disability under the ADA guidelines, you have a right to reasonable accommodations in order to perform your job. If your underlying condition makes you at high-risk for serious complications because of COVID-19 and that condition is covered by the ADA, you may have an exception to going back to the office. An accommodation could be that you continue to work remotely.
Employees Who Need to Care for Family Because of COVID-19
The Families First Coronavirus Response Act (FFCRA) provides some protections for employees you must care for a family member because of COVID-19. For instance, if your child’s school or daycare is closed due to the pandemic or an outbreak, this law provides expanded leave options. If you are the caregiver for a family member with COVID-19 or need to isolate because of a family member’s exposure to COVID, you also have options for expanded leave.
Contract Employees
If you are not an at-will employee but rather have a contract with your employer, the situation may be more complex. Depending on the circumstances and how the contract was written, you may have options to continue remote work. Consulting with an employment lawyer is a wise idea for contract employees refusing to return to work.
Can My Employer Mandate that I Get the COVID-19 Vaccine?
Just like being asked to return to the office, because New Jersey is an ‘at will’ employment state, you can be fired for refusing the vaccine. Employers consider requiring a vaccine to be a health and safety work rule. Workplace vaccination requirements aren’t new, and they have stood up in courts. Like the flu or other communicable diseases, state and federal courts have repeatedly ruled providers can compel workers to be immunized. There are, however, some exceptions to this mandate.
The past year’s upheaval and pandemic crisis has changed us all in many ways. For some employees, the idea of returning to the office does not feel comfortable or safe anymore. The best course of action is to bring your concerns to your employer, as many organizations may have a more flexible approach to remote work. If you have a qualifying reason to not return and your employer is still mandating it, you should consult with an employment attorney about your options.
Brandon J. Broderick, Employment Law, New Jersey and New York
If you are experiencing wrongful conduct, discrimination or harassment in the workplace, Brandon J. Broderick, Attorney at Law, can help. Rated one of New Jersey’s top employment law firms, we are focused on client care and passionately pursuing the best interests of our clients. Contact us today for a free consultation.