We covered a lot of ground during FELTG’s four-day Emerging Issues in Federal Employment Law event last month. It was a week of engaging instruction, and the questions continued to pour in days after the event ended. Not surprisingly, a lot of the questions involved current and expected pandemic-related challenges.
If you’re still looking for answers, join Attorney at Law Katherine Atkinson for EEO Challenges: COVID-19 and a Return to Workplace Normalcy on June 2 from 1:00-4:30 pm ET.
Here are a couple of questions that came in following the Emerging Issues event.
Let’s assume that there is a point where the pandemic is no longer considered a direct threat and we do not require vaccination for employees to return to work. What if an employee who refuses to be vaccinated uses the lack of vaccination as an objection to returning to the workplace? Can you take the employee off telework and require him to return to the workplace even if he is not vaccinated?
This question popped up after FELTG Instructor Katie Atkinson’s session COVID-19 and EEO: What We’ve Learned and What We Still Need to Know. Katie replied that an employee’s “objection” to returning to the workplace is irrelevant unless that person is requesting a reasonable accommodation.
Let’s look into the near future and envision a time when the world is back to pre-pandemic parameters for telework. At this point, an employee’s refusal to return to work is simply a failure to follow a direct order or an AWOL charge.
Be careful, though: If the “objection” is framed as a request for reasonable accommodation, then you need to process it as a reasonable accommodation request. Here’s an example: “I have a medical condition that necessitates telework.”
You need to determine: is the employee a qualified individual with a disability? Does he have a medical condition that substantially limits a major life activity? Can he perform the essential functions of the job while teleworking? Are there other accommodations available? Would full-time telework impose an undue hardship?
To your question about vaccinations, the employer can require the employee to return to work regardless of whether the employee is vaccinated. If the employer does not require a vaccination, then whether to get vaccinated is the employee’s choice. If this is not a reasonable accommodation situation, then it’s entirely the employer’s choice whether they want to require the employee to work in person.
An employee reports to work with symptoms of COVID. I want to send him home, but he doesn’t want to be sent home because he doesn’t have any sick leave. What leave options are there for this?
This may sound complicated, but it’s really not. As Senior Instructor Barbara Haga explained in her session Leave for the Federal Employee in 2021, there are new leave provisions that cover just this circumstance. As long as the employee is actively seeking a diagnosis as soon as possible, he would be covered. [Editor’s note: Speaking of leave, join Barbara for the 60-minute webinar Implementing the Employee Paid Provisions of the American Rescue Plan on May 26.]
Do you have a COVID-related question that needs an answer? Or another Federal employment law-related question? Ask FELTG.
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