Question

We have an employee that has stated that she is unable to perform a particular task. We have requested that she put this in writing. She is not willing to state the reason she is unable to perform the task. We are willing to transfer this task to another employee but want to know if we have the right to insist on having the employee state the reason?

Answer

If the task that is the subject of the inquiry is a requirement of the employee's job, and she refuses to perform it for no stated reason, then this is, in and of itself, insubordinate, and can be treated as such in accordance with employer policy and practice. The employer is not required to eliminate or reassign tasks merely because an employee refuses - for reasons unknown - to perform them. Unless the employer's policy or practice supports accommodating insubordinate demands (such as outright refusals to perform tasks without explanation) by reassigning such tasks to others, we do not recommend that the employer set a precedent and do so here.

That said, there are some instances where employees are protected in their stated inability to perform job functions (or at least should not be disciplined for it), and/or may be entitled to an accommodation that can take the form of removing non-essential job functions. For example, if an employee is unable to perform a particular job function due to a disability or sincerely held religious belief, or refuses to do so because the task compromises safety, or requires the employee to perform unlawful activities or to engage in conduct that is contrary to public policy, etc., then there is statutory protection for an employee who objects to performance of the task in these scenarios. As to job duties an employee cannot perform due to sincerely held religious beliefs or disability, federal and state law require the employer to examine whether a reasonable accommodation - perhaps in the form of modifying the employee's job to remove or reassign the non-essential function - can be provided without undue hardship. The EEOC expressly addresses this in Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act relative to accommodating disabled employees. Particularly in the section titled "Job Restructuring," the EEOC states that this can be a form of reasonable accommodation and "includes modifications such as:

• reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and altering when and/or how a function, essential or marginal, is performed."

That said, the EEOC also advises that "(a)n employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes." Religious accommodation requirements are similar, and you can learn more about them at What You Should Know About Workplace Religious Accommodation. State law does not differ on these issues to our knowledge. If an employee indicates a refusal to perform a job duty because he or she believes that doing so compromises safety or violates public policy, etc., the employer would do well to undertake a prompt investigation and take appropriate action to address any resultant compromise or concern, and further cannot retaliate against the employee for engaging in "whistle-blowing" or similar activity.

Ultimately, if the subject employee "is not willing to state the reason she is unable to perform the task," and the employer is not otherwise aware why she will not do so (and particularly if the employee was on notice that such task is a requirement of the job), the employer is not required by any employment law of which we are aware to accommodate such refusal, assuming the task is not something that is contrary to public policy, or is unsafe, etc. It can and should treat the employee as it would any other who unreasonably failed or refused to perform the required functions of his or her job, which presumably includes some form of disciplinary action and perhaps even discharge, depending upon the applicable facts. Note that although the employer is otherwise "willing to transfer this task to another employee," if it does so without any understanding of the employee's refusal to perform the task in the first place, it will be setting a precedent (assuming this is the first situation of its kind). Other employees who - for whatever reason, including those that do not enjoy statutory protection - simply do not wish to perform one or more of the tasks associated with their jobs may just refuse to do them, and then will expect the employer to similarly remove and reassign said function(s) just as was done here. The employer should carefully consider the consequences of accommodating the subject employee's refusal to perform the particular task without knowledge of the underlying reason. While employers do have a duty to accommodate in some cases, as noted, there is no obligation to do so in every case where an employee simply does not want to perform the duties required of his/her job.

We recommend that the employer document the employee's refusal to perform the particular task and meet again with her to ascertain why she won't meet this aspect of the job. You can explain to her the employer's reason for wanting an explanation as to her reticence, which includes protecting her statutory rights, if they apply. If she articulates her justification verbally and not in writing, the employer can still document the conversation, and from there can determine whether accommodation needs to be and/or can be provided. If she continues to refuse to state any reason for refusing the task, then this, too, should be documented. Any disciplinary action for insubordination that issues in a manner consistent with employer policy and practice should be documented, as well.

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