The Returning Workforce: To Mandate or Not to Mandate

July 30, 2020

Anna B. Cole, Mark Broth,

As New Hampshire employers work to reopen businesses, 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, all employers are required to provide employees with a safe work environment. For private employers, this obligation arises from both the New Hampshire workers’ compensation statute and under OSHA. Currently, there are no mandatory federal or state safety practices that employers must implement, but the guidelines issued by OSHA and the governor’s office, which are largely consistent with those issued by the CDC, establish the best practices employers should follow at this time before asking any employee to report to the workplace.

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 exceptions would be those employees who are entitled to take leave under the FMLA, Emergency Paid Sick Leave Act, Emergency Family and Medical Expansion Act, and/or New Hampshire’s maternity leave statute. Additionally, employers are required to consider providing reasonable accommodations to those employees in accordance with the ADA, which could include the opportunity to continue to work from home, workspace modifications or periods of additional leave.

However, what about an employee who has not indicated a current medical reason to refuse to report to work but instead is simply afraid that reporting to work would increase the likelihood of contracting COVID-19? What about the employee who lives with an immunocompromised family member? Strictly speaking, these employees do not qualify for leave under any applicable statute, nor would they be entitled to an ADA accommodation. 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 issue such a mandate. In these times, employers are prudently exploring non-traditional work arrangements to avoid losing valuable institutional knowledge and other skill sets in the event employees ultimately feel that they would prefer to resign than run the risk of infection. While some employers may ultimately determine that the in-person workplace is the only successful model, others may discover innovative arrangements that allow for both effectiveness and productivity, while also fostering a deeper commitment to the company among employees who feel heard and respected during these difficult times.

Mark Broth and Anna Cole are members of Drummond Woodsum’s Labor and Employment Group. Their practices focus on the representation of private and public employers in all aspects of the employer-employee relationship.