Q: My employer is asking us to return to the office full-time on July 1. I am super anxious about returning to an office. I don’t know who is vaccinated and who is not. I want my employer to tell me this. There may be some who haven’t been vaccinated and could be infecting me. Sitting next to someone for eight hours per day freaks me out.
Can I ask for a reasonable accommodation about returning to work during off-hours or on a phased in basis? Is that reasonable or not?
A: The world is changing and, in most instances, especially with respect to COVID, this is a positive. I expect that many employees will have some anxiety about returning to the workplace. In Massachusetts, and adjoining states, our numbers are improving.
I consulted Attorney Peter J. Moser, a partner at Hirsch Roberts Weinstein LLP, a Boston-based law firm. Moser shares “Generally, an employer has the right to determine job responsibilities, including when and where the work is to be performed; there is no per se entitlement to work an alternative schedule or to work on a remote or partially-remote basis, even if the requesting employee is sincerely feeling anxious about returning.” However, there may be situations where anxiety may be considered a medical condition (or a factor related to a medical condition). Then the employee may request an accommodation to help them perform the essential job functions of their role. In these situations, most employers have an obligation to engage in a conversation with the employee to determine if there is some flexibility that can support the employee. An employee may request a specific accommodation but the employer does not have to agree to the employee’s request. Often there is some “give and take” and discussion about what could work and also what could not. Accommodations vary between companies, as each employer is different.
Beyond implementing an accommodation, an employee may also consider taking a leave of absence. An employee may consider researching their options under the Family Medical Leave Act, Paid Family and Medical Leave (in Massachusetts) or an employer’s internal disability policy.
Regarding your concern about knowing others’ vaccination status, I understand your concern. An employer should not share who has been vaccinated and who has not. Moser states “Vaccinated status is not protected medical information under the laws enforced by the EEOC, or under HIPAA in most employment situations. Still, employers are well-advised to treat an individual’s vaccination status as confidential.” Employers can ask their employees if they have been vaccinated. They can even ask for vaccination cards (or copies). They can can share aggregate information. I think we will see that in restaurants over the summer, perhaps with signage stating “Over 95% of our employees are vaccinated.”
COVID has certainly changed how businesses operate. Returning to the workplace over the next few months will be a challenge for many employers.
Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.