By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.
As restrictions begin to lift, many employees throughout the country are gradually returning to work. But for many, the workplace looks vastly different. While it is no surprise that the COVID-19 Pandemic has forced workplaces to modify their practices in order to protect employees and patrons and comply with state orders, to what degree can employees be asked to modify their work duties in order to comply with the orders? Absent some specific situations, the answer is probably that the employer asking the employee to perform tasks that are outside work duties they performed in the past may be permissible under the law.
For example, an employee whose job description entails administrative work like filing, phone calls, and customer relations who returns to work after the pandemic to spend a portion of their time disinfesting surfaces and common areas may still be working within the scope of their job duties. This may be especially true for employees whose employment contracts contain a general clause that the employee may be asked to do any tasks the employer deems appropriate. Moreover, on the balance, there is no way around the employer’s obligations to ensure the protection of patrons to the extent that those efforts do not place employees in danger. It may therefore be reasonable for an employer to request such tasks be done by employees who were not previously responsible for them.
As another example, an employee who returns to a job where, given the pandemic, their previous job duties and responsibilities are impossible to perform, may similarly be out of luck. Given that many tasks, including client and customer relations, are now being completed remotely when possible, a slight shift in responsibilities may again be reasonable.
That being said, there may be instances where an employer’s modifications and requests could constitute a legal violation. The Occupational Safety and Health Act (“OSHA”), contains a General Duty Clause which requires employers to provide “…a place of employment  free from recognized hazards that [may] caus[e] or are likely to cause death or serious physical harm to his employees.” Employees who complain of such health risks who are thereafter retaliated against of terminated by their employers may in turn have a cause of action under the Conscientious Employee Protection Act (“CEPA”).
Certainly those in the healthcare world may face scenarios where they are asked to perform services that they are not trained for or equipped to handle. Although you have to be mindful of Executive Orders that may apply to these situations, the whistleblower statute may offer some protections to object to such requests. If you find yourself in such a situation, you would be well served to get some advice from an attorney who concentrates in Employment Law.
Additionally, an employee may return to a job that is so vastly different that they may be able to demonstrate that they were constructively discharged. However, this may very well be an uphill battle, especially if the individual is non-union and has no employment contract. To make a case, the employee must prove: (1) that the employer made work conditions so intolerable that any reasonable person would resign, and (2) that the employee did resign because of those conditions.
In short, the answer to the question largely depends on the unique set of circumstances present in each employee’s case. To that end, employees who feel they have been forced into a different set of job duties would be wise to seek legal advice to verify whether their employers may legally make such requests.
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