Returning to the Office – Considerations for Employers and Employees
By Maddie Brown
For many people, one of the most disruptive effects of the coronavirus pandemic has been the shift to working from home. As states begin to reopen, many people who had to make this shift will be asked to return to the office. However, given that the pandemic is ongoing, appropriate general precautions need to be in place and specific precautions may need to be taken on an individual basis. Here are some key considerations for both employers and employees as they navigate this unprecedented and uncertain time.
Commuting to and from work increases the risk of exposure and thus employees may feel uncomfortable about returning to the workplace. Unfortunately for those people, as a general matter, if the office is lawfully permitted to be open, then an employee cannot refuse to come into work, and employers do not have an obligation to allow employees to work from home. That said, there are a couple exceptions and circumstances that allow employees to rightfully refuse to return to the office. For example, if an employee has a disability or a preexisting condition, such as a compromised immune system, that falls under the scope of the American Disabilities Act (ADA), the employer would be required to make accommodations, like allowing continued work from home.
Additionally, an employee also has the right to refuse to come into the office if they fear there is a risk of death or serious harm by continuing to work. The Occupational Safety and Health Act of 1970 (OSH Act) established the Occupational Safety and Health Administration (OSHA) and requires employers to provide a work environment “free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.”1 COVID-19 is considered something that is likely to cause serious injury or death.
Under OSHA’s standards, in order to have the legal right to refuse work, the following conditions must be met: (1) when possible, the employee asked the employer to eliminate the danger and the employer failed to do so, (2) the employee is refusing to work in good faith, (3) a reasonable person would agree that there is real danger of death or serious injury, and (4) due to the urgency of the hazard, there is not enough time to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.2 Thus when it comes to COVID-19, you may have a right to refuse to work at the office if you can show there is a serious risk of exposure to the virus, and your employer fails to remedy the problem.
So, if an employee finds the workplace to be unsafe, they should first discuss the matter with their employer and request that the concern be addressed appropriately. If the employer fails to take action to remedy the issue, an employee can submit documentation and file a confidential health and safety complaint with OSHA. If the complaint is determined to be valid, OSHA will respond with appropriate measures, such as conducting an inspection of the workplace and requiring the employer to be compliant. It is important to note that under Section 11(c) of the OSH Act, employers are prohibited from retaliating against employees for filing a complaint with OSHA. Of course, given the widespread nature of COVID-19, it may take some time for OSHA to respond.
On the other hand, an employer may be concerned about whether it would be liable in the event an employee catches COVID-19 during a period where the employee is commuting to and from work, and working from the office. When an employee is injured on the job, such as from a slip and fall, employers are often on the hook for associated medical costs. In these situations, it is clear that the employee was injured on the job. However, when it comes to contracting COVID-19, it is very difficult to prove exactly how an individual became infected. The very nature of this pandemic is that is highly contagious and difficult to track. Therefore, it would be difficult for an employee to prove that they contracted the virus on the job because there are so many possibilities for exposure.
However, with that being said, employers should still protect themselves from these potential claims by implementing and staying up to date on the policies recommended by OSHA, Centers for Disease Control and Prevention (CDC), and state/local governments.
To date, OSHA has issued non-binding guidance addressing employers’ responsibilities to employees regarding COVID-19. The steps all employers are recommended to take to reduce workers’ risk of exposure to the virus include developing an infectious disease preparedness and response plan, implementing basic prevention measures, developing policies and procedures regarding identifying sick people and workplace flexibility, and following general OSHA standards. These guidelines further recommend the implementation of engineering and administrative controls. Engineering controls include installing air filters or physical barriers between workers. Administrative controls involve developing policies and procedures that reduce contact among workers, conducting up to date training on COVID-19 risk factors, and providing resources for personal hygiene and personal protective equipment.3
In addition, the CDC recently updated its strategies and recommendations for employers responding to COVID-19, including those seeking to resume normal or phased business operations. These recommendations include conducting daily health checks, conducting a hazard assessment of the workplace, encouraging employees to wear cloth coverings in the workplace, implementing policies and practices for social distancing in the workplace, and improving the building ventilation system.4
Prior to re-opening, employers should protect their employees and in turn themselves by clearly implementing the recommended policies and staying up to date on guidelines as re-opening progresses. Employers should also be proactive about considering what kinds of accommodations their employees may need at this time and prepare accordingly.
 OSH Act of 1970 Section 5(a)(1)
 U.S. Dept. of Labor, Occupational Safety and Health Administration, Worker’s Right to Refuse Work. https://www.osha.gov/right-to-refuse.html
 OSHA Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf
 Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020 https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html#more-changes
Maddie is an associate at GS2Law and can be reached at email@example.com or (212) 380-3623