Re-opening and Returning to the Office
By C. Margaret Tritch
The CDC is the go-to authority and is regularly updating its guidelines and criteria for employers. Complying with its guidance, is not only helpful to all business’ constituents, but provides the employer with a strong defense. It is possible that a negligence claim could be raised by not only employees, but clients, customers, or visitors, if federal and state health guidelines were not followed.
Some employers are facing reluctant employees, who do not wish to return, and some employees are fearful of returning to work. Section 7 of the National Labor Relations Act (NLRA) gives private sector employees the right to engage in concerted activity for mutual aid and protection. NLRB v. Washington Aluminum, 370 U.S. 9 (1962). This would cover a group of employees objecting to the safety of the work environment. Section 502 of the NLRA permits an individual employee to stop working “in good faith because of abnormally dangerous conditions for work”. That is a high standard for an individual to prove. The employee must have a good faith belief based on objective evidence. Gateway Coal Co. v. United Mine Workers of America, 414 U. S. 368 (1974). If the employer is following CDC guidelines and if applicable, OSHA best practices, proving an “abnormal danger” is thought to be highly unlikely. Employer and employee rights are also subject to state laws, but the Federal laws are a good place to start. The state laws must at least follow the Federal but can choose to provide greater rights. Arizona law does not provide any greater rights and mirrors the Federal laws discussed above.
What if you are an employee with an underlying medical condition? The medical condition must be identified as high risk by the CDC to claim that a workplace modification is required. If it is “high risk”, then the employer and employee must engage in an interactive process under the Americans with Disabilities Act to determine whether a reasonable accommodation can be made for the employee that is “feasible and effective”. The employer should demonstrate that they have considered job modification, leave and/or reassignment before “giving up” on the employee. The employee needs to be reasonable and cannot base their resistance on something they read and ungrounded fears. An unequivocal letter from their doctor will likely be required if they are resisting employer proposed modifications. From what I am privy to so far, the Doctor’s letters being submitted are vague and not unequivocal. I suspect obtaining a doctor’s letter that clearly supports the employee’s position will not be easy. Such a letter is now putting the doctor’s professional liability insurance on the line and forcing the doctor to opine on a workplace that he/she has never seen.
While these are unprecedented times, the law always adapts to the changing circumstances and employers and employees do have rights that they can rely upon to provide a roadmap forward as businesses reopen and workplaces return to in-person working.
Cartwright, Dr. Martina, and Denise Blommel. “Risk Management and COVID-19.”
Arizona Attorney Magazine, no. January, 2021, pp. 22–27, www.azattorneymag-digital.com/azattorneymag/202101.
Disclaimer – This article is for information purposes only. It is not intended to provide legal advice to anyone. If you require advice, you should reach out to our firm or another lawfirm to discuss your facts and circumstances to obtain legal advice.