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Some employees will not or cannot comply with new health and safety protections. While employers generally are permitted to set policies for managing their workforces, there are laws that protect employees’ ability to object to or refuse to comply with employer policies. As employers prepare to reopen, they should review federal, state, and local laws before implementing policies or disciplining or terminating employees for noncompliance. See State L&E Developments.
Most states allow employers to discipline or terminate employees for any reason that isn't otherwise prohibited by law. See State Comparison Chart: At-will Employment. That means that employers generally can require employees to wear personal protective equipment (PPE), undergo health and temperature screenings, and comply with other policies and practices designed to protect employees, contractors, customers, and visitors from the spread of Covid-19.
Employers that implement health and safety policies are still subject to discrimination, wage and hour, and other employment laws. Employers can and should implement progressive discipline policies for noncompliance and enforce those policies fairly and in accordance with applicable federal, state, and local laws.
Employees with disabilities may be entitled to accommodations related to PPE, health screening, and other return-to-work issues. If an employee requests an accommodation, their employer should engage in the interactive process to determine if accommodations, such as additional PPE, would allow the employee to safely return to the workplace. For more information on the interactive process, see ADA Reasonable Accommodation Interactive Process.
If reasonable accommodations can't be found, present an undue hardship for employers, or if, even with accommodations, the employee poses a direct threat to themselves or their coworkers, the ADA allows the employer to prohibit the employee from returning to the workplace. See 42 U.S.C. §§ 12111 to 12112; 29 C.F.R. § 1630.9.
For more information about what constitutes and undue hardship, see Assess Undue Hardship of Accommodation.
State laws may impose additional requirements on employers. See State Comparison Chart: Disability Discrimination.
If an employee objects to a policy based on a sincerely held religious beliefs, employers should engage in the interactive process to determine reasonable accommodations are available. If accommodating an employee's religious beliefs if doing so would cause more than de minimis burden, Title VII allows employers to refuse the accommodation. See Point of Law, POL.
Some states impose additional religious accommodation requirements on employers. See State Comparison Chart: Religious Discrimination.
The Occupational Health and Safety Act allows employees to refuse to come to work if they believe they are in imminent danger. Under the act, imminent danger is, “…any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”
Employers are not required to accommodate an employee's political belief and can discipline or terminate an employee who refuses to comply with social/physical distancing, health screening, or other health and safety policies. Private employers are not government actors and are not required to guarantee free speech for their employees. Just as employers can discipline or terminate employees for refusing to comply with harassment policies, they can discipline or terminate employees who refuse to comply with health and safety policies.
Although employees in the public sector do have some free speech rights, government employers can impose regulations on their employees’ conduct that are designed to protect health, safety, and welfare of the public. See POL.
Despite the fact neither public or private employers have to accommodate political beliefs in the workplace, they may not be able to discipline or terminate employees because they hold particular political beliefs or because they express those beliefs outside of the workplace. See State Comparison Chart: Lawful Activities.
Federal law generally allows private employers to discipline or terminate employees for their behavior outside of work. However, some state laws protect lawful outside activity or limit an employer's ability to access or act upon employees’ social media accounts. See State Comparison Chart: Lawful Activities, State Comparison Chart: Social Media.
Public employees are entitled to free speech protection under the First Amendment, but employers still have some leeway in limiting employee speech. See POL.
Employers that are subject to collective bargaining agreements must comply with the terms of those agreements and may be required to engage in bargaining before implementing or enforcing new policies or practices. The National Labor Relations Act requires employers and unions to bargain over wages, hours and other terms and conditions of employment. See Smart Code® – 29 U.S.C 158(d).