HR REPORT: The Returning Workforce: To Mandate or Not to Mandate

Mark Broth, Esq. and Anna Cole, Esq.

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

As New Hampshire’s towns and cities work to reopen in-person services, despite the ongoing pandemic, many are confronting a basic question: Can I require my employees to report to the workplace?  In short, and as attorneys love to respond, it depends. 

As a threshold consideration and as addressed more fully in last issue’s HR Report, all employers are required to provide employees with a safe work environment.  Currently, there are no mandatory federal or state safety practices that employers must implement, but the guidelines issued by the Governor’s Office, DHHS, the CDC, and OSHA are largely consistent and should be looked to for the best practices that employers should follow before asking any employee to report to the workplace. 

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Assuming that an employer has implemented these best practices and intends to keep employees safe at the workplace, employers can expect employees to report to work.  The (not insignificant) exception is for employees who are entitled to stay out of work on a protected leave of absence under the FMLA, the Families First Coronavirus Response Act (either the Emergency Paid Sick Leave Act provisions or the Emergency Family and Medical Expansion Act provisions), the New Hampshire’s maternity leave statute, or some other applicable leave statute.  Additionally, employers are also required to consider providing reasonable accommodations to those employees with disabilities in accordance with the ADA and New Hampshire’s Law Against Discrimination (RSA 354-A).  While accommodations need to be evaluated on a case-by-case basis, they can include workplace modification or changes in policies, but can also include the opportunity to work from home or take some period of leave from work.

But what about an employee who has not identified a medical reason for refusing to report to work, but instead is simply afraid of the increased risk of contracting COVID-19 if they report to work?  What about the employee who lives with an immunocompromised family member?  What about an employee is who is healthy and over 65 years old and who is concerned about reporting to work because their age places them into a CDC-recognized high risk category?  Strictly speaking, these employees do not qualify for leave under any applicable statute, nor would they be entitled to a disability accommodation.  As they are not ill, they likely would be ineligible to use employer provided paid sick leave.  Can they be fired?  The short answer is probably yes.  An employer who has taken steps to make their workplace as safe as can be reasonably accomplished could simply instruct the employee to report to work or risk losing their position. 

However, even if an employer can lawfully mandate such employees to return to the workplace, significant thought should be given to whether the employer should follow that path.  Employers should be mindful that just six months ago, New Hampshire had one of the lowest unemployment rates in the nation and it was increasingly difficult to find police officers, firefighters, EMS, public works, and other necessary employees.  Given the state’s low rate of population growth, those challenges may continue.  In these times, employers are prudently exploring non-traditional work arrangements to avoid losing valuable institutional knowledge and other skill-sets (or even simply to avoid a catastrophic staffing shortage that would effectively prevent operation) in the event employees ultimately feel that they would prefer to resign than run the risk of infection.  While some municipalities may ultimately determine that many of their services can only be successfully provided with in-person staff, others may discover innovative arrangements that allow some work to be provided effectively without the employee reporting to the physical workplace.  Where possible, such arrangements also have the ancillary benefit of fostering among impacted employees a deeper commitment to the employer because they will feel valued, heard, and respected during these difficult times.

Mark Broth and Anna Cole are members of Drummond Woodsum’s Labor and Employment Group.  Their practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion.  Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2020 Drummond Woodsum.  These materials may not be reproduced without prior written permission.”