11 Arguments to Keep Working from Home — and Their Chance of Success

By Kellee Boulais Kruse and Madeline Cook

 

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IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific, and the COVID-19 pandemic remains a fast-changing situation. This article represents our firm’s best knowledge as of August 30, 2021.

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Remote work was common during the first year of the COVID-19 pandemic, but now many companies are requiring all employees to return to in-person work — sometimes with a vaccination requirement, masking rules, or both.

Such requirements are legal, generally speaking. Still, you may not want to comply, especially if in-person work seems dangerous and you’ve worked happily and productively from home for more than a year.

So what’s a valid reason for seeking an exception to your company’s return-to-work mandate?

Below we examine 11 possible arguments and rate the viability of each one — that is, the likelihood that a well-informed employer will at least take you seriously.

Remember, success is never guaranteed.

Companies may refuse to cooperate even if you seem to be entitled to an accommodation, leaving you with no option except to yield or to seek legal help. Conversely, if you’re lucky, a company may grant you an exception even without a “proper” reason.

This guide should help you to understand the difference between such situations — and to decide whether you have a battle that’s worth fighting.

Before you start, please know that each situation is unique. In particular, you are governed by a mix of these factors:

• Your individual circumstances;
• Your company’s policies, as outlined in an employee manual, companywide e-mails, and elsewhere;
• Guidance from your state and local officials, which may change frequently based on regional conditions; and
• Current national guidance from the Equal Employment Opportunity Commission (EEOC) and elsewhere — this page provides an authoritative summary.

Also, bear in mind the fundamental dynamic here: Your employer is entitled to set requirements for its workers, as long as those requirements aren’t illegal or enforced in a discriminatory way. Meanwhile, you are entitled to be safe in your workplace. Your employer should respond to any concern you raise in good faith, most especially if it involves your safety or the safety of others. In most cases, your company is prohibited from punishing you for raising such concerns.

Whether you get the outcome you seek, however, will depend on the argument you choose.

 

Stay-at-Home Argument #1: I have a documented physical health condition

Scenario: Your medical adviser says that you should not be vaccinated, and/or that your condition makes in-person work risky regardless of your vaccination status.

Viability of this stay-at-home argument: Good.

If it’s available to you, this is likely the strongest argument you can make, especially if your doctor advises you against being in the workplace for health reasons. The Americans with Disabilities Act (ADA) requires employers to grant reasonable accommodations to employees who have a physical or mental disability, as defined in the statute — and if you’ve already been working from home, it’s hard for employers to argue that you can’t continue.

When you make an ADA request to your employer, you will need support from a healthcare provider. You must be ready to open up your health records. HIPAA, the medical privacy law, does not apply in these circumstances: Your employer is entitled to determine whether your condition requires ADA consideration, and whether — even if you truly can’t be vaccinated — you may still be able to return to work with extra precautions.

Worth noting:

• If your employer requires vaccination and you can’t take one specific vaccine for medical reasons, you may still be required to take a different vaccine.
• If working from home would make it difficult to continue doing your job, would endanger others in the workplace, or would be unduly costly for your employer, your accommodation may be refused.
• The ADA doesn’t cover employees of the federal government, who are protected instead by the Rehabilitation Act of 1973. The two laws are not identical, but for this purpose they’re largely the same.

 

Stay-at-Home Argument #2: I have a documented mental health condition

Scenario: Your medical adviser says that returning to in-person work would severely impact your mental health.

Viability of this stay-at-home argument: Good.

As noted above, the ADA applies to mental health conditions; the general standard is whether your condition substantially limits one or more major life activities. For federal employees, the Rehab Act is largely the same.

Disclosing a mental health issue to your company is tough, but you are protected against discrimination and retaliation under the ADA or the Rehab Act. If a doctor says that your condition will be exacerbated by a return to in-person work, your employer should be open to accommodating you.

Again, your medical records are fair game. Expect some back-and-forth about the exact nature and duration of your exemption from in-person work — and possibly some skepticism or alternative suggestions.

Still, with proper documentation you should be taken seriously.

 

Stay-at-Home Argument #3: I’m pregnant

Scenario: Even if you were vaccinated before or during your pregnancy — a step that is urged by the Centers for Disease Control — you believe that in-person work would be unsafe for you and your unborn child due to the remaining risk of infection.

Viability of this stay-at-home argument: Decent.

By itself pregnancy is not a disability under the ADA, but in Young v. United Parcel Service, Inc., the Supreme Court held that employers can’t refuse pregnant workers an accommodation that they offer to others who have similar limitations due to a medical condition. According to the CDC, being pregnant raises a person’s risk of severe illness from COVID-19 infection, so it’s likely that a pregnant employee should be treated analogously to an immune-compromised employee. In addition, COVID infection increases the risk of preterm birth.

Definitely have a discussion with your doctor, who may bolster your argument with a medical opinion. Your company still might suggest returning to work with extra precautions — particularly if that’s required of comparable workers. A well-informed employer will likely err on the side of caution, however, as long as you can perform your job effectively from home.

This particular stay-at-home argument is viable only for the duration of a pregnancy, obviously.

 

Stay-at-Home Argument #4: I object to vaccination for religious reasons

Scenario: Your sincere religious beliefs disallow vaccination, and you believe that in-person work would be unsafe.

Viability of stay-at-home argument: Decent, but employer still may require in-person work with unpleasant conditions.

In general, employers will allow workers to refuse vaccination for sincere religious reasons – but pre-COVID law suggests that they might be required to work in-person regardless.

In Horvath v. City of Leander, for instance, the U.S. Court of Appeals for the Fifth Circuit in early 2020 ruled that a firefighter could be excused from a mandatory TDAP vaccine on religious grounds — but that he also could be required to choose between undesirable options that included wearing a respirator while on duty, keeping a temperature log, and being tested regularly.

How this plays out in COVID times is uncertain, but remember that remote work isn’t the only possible accommodation for unvaccinated employees: Your preferred solution may not be the same as your employer’s.

 

Stay-at-Home Argument #5: My workplace is not safe

Scenario: Even though you’re vaccinated, you still fear COVID-19. You think your employer isn’t taking enough precautions to prevent breakthrough infections. You object to sharing space with unvaccinated co-workers.

Viability of stay-at-home argument: Temporary at best.

You have a right to a safe workplace, and it’s perfectly reasonable to hold your employer to its legal obligations. It’s unlawful for your company to punish anyone for raising valid safety concerns — for asking about details of masking and cleaning protocols, for instance.

That said, you don’t get to set safety standards yourself. The federal Occupational Safety and Health Administration (OSHA) and its local analogs do that. If your employer isn’t meeting OSHA guidance, you can point out specific problems and ask your employ to fix them, perhaps staying at home until the situation is addressed — but you can’t hold your company to an ideal of your own making, and you have no right to stay at home if your workplace already meets OSHA standards.

As an example, you can’t refuse to work alongside unvaccinated employees unless you have a documented health condition. Indeed, OSHA guidance is often more focused on the safety of the unvaccinated workers in such a mixed environment.

Furthermore, most OSHA protections are enforced via an administrative process at the U.S. Department of Labor. Resolution can take years, while you may have been fired in the meantime. As a practical matter, you must weigh your discomfort against your continued employment. Pursuing legal action is costly and risky.

 

Stay-at-Home Argument #6: My workplace may be safe, but my commute is not

Scenario: In order to work in-person, you must use public transportation that’s crowded and possibly full of unvaccinated people. This freaks you out.

Viability of stay-at-home argument: Poor.

Employers don’t control the world outside your workplace; ultimately, the safety of your commute is on you. The only exception would be based on a diagnosed mental or physical condition — in which case you should argue for an accommodation under the ADA or Rehab Act, as noted above. Your employer could argue for a different solution, however, such as a rideshare arrangement.

 

Stay-at-Home Argument #7: I live with an immune-compromised person or an unvaccinated child

Scenario: You’re vaccinated but you fear bringing home a breakthrough infection to a vulnerable family member.

Viability of stay-at-home argument: Shaky, but worth making.

Legally this is a poor argument, as the ADA does not require employers to accommodate the condition of a third party, but your company still might accommodate you out of empathy. Talk to your employer and explain your fears. Appeal to their humanity.

 

Stay-at-Home Argument #8: I moved during the pandemic

Scenario: You moved out-of-state during the remote-work period — perhaps to take care of family members. Now you’d have to upend your life to return to the workplace.

Viability of stay-at-home argument: Poor.

We’ve consulted with several employees in this situation. They became very comfortable with remote work and didn’t understand why their employer would insist that they return. Unfortunately, an employer doesn’t need to justify such a requirement.

In fact, even for people who telework full-time, an employer can choose to employ only workers who live in certain states, absent other facts. If you used to work remotely from home in D.C., for instance, but moved to Montana during the pandemic (perhaps without your boss’ knowledge or approval), your employer could require you to move back to D.C. even for remote work.

At bottom, employers can choose which states’ employment laws they want to be subject to. Many employers don’t want the hassle of complying with paperwork in extra states, or being exposed to employee-friendly laws in states such as California.

Unless you got explicit permission to move permanently, you have little leverage here.

 

Stay-at-Home Argument #9: I don’t want to get the vaccine (or to prove that I got it)

Scenario: You’re required to return to in-person work, and your employer requires proof of vaccination. You don’t believe the vaccine is safe, or you have some other reason for not getting it, such as personal liberty — or you simply object to providing proof.

Viability of stay-at-home argument: Poor.

Like it or not, the federal government has declared the vaccine to be safe and effective — and the world is facing a health crisis. Unless your objection is based on a documented health condition or a bona fide religious belief, your employer can likely reject a stay-at-home request and require you to get the shot before reporting to the workplace. If you don’t comply, you must face the possibility that you’ll lose your job as a result.

Instead of firing you for refusing to prove your status, your employer might force you to follow different workplace rules — mandatory masking and/or weekly testing, for instance. Based on current law and guidance, such questioning and treatment doesn’t violate either the ADA or HIPAA, although follow-up questions about your reasons should be minimal and consistent with business necessity.

Your vaccination status should be kept confidential from your co-workers, but differential treatment may “out” you as unvaccinated. Alas, this is part of the balance employers must strike between privacy and workplace safety.

Many people believe the entire situation is unfair, but your chances of prevailing in a legal battle are slim.

 

Stay-at-Home Argument #10: I work better remotely

Scenario: You prefer to work at home, where you believe you’re more productive. You can’t understand why your employer would choose an option that’s obviously worse.

Viability of stay-at-home argument: Poor, but make your case.

To be clear, employers can make in-person work a condition of employment — even at the cost of productivity. If they insist, you’re unlikely to win the argument.

Still, make your case. Employers are rational creatures, and if your performance improved significantly while working remotely during the pandemic you might be persuasive. Remember that there are other factors, however, including the risk of setting a precedent: You allowed her to work at home, so why not me?

Which brings us to …

 

Stay-at-Home Argument #11: You allowed someone else to stay at home

Scenario: Your employer has allowed other people to continue working from home, and there’s no obvious difference between them and you.

Viability of stay-at-home argument: Depends heavily on the facts.

If your employer has allowed work-from-home only for strong legal reasons — such as a health conditions — and those reasons don’t apply to you, then it’s hard to make this argument. If you notice that another factor is at play, however, you could have a strong case.

For instance, if everyone who was exempted from in-person work is white and you, a person of color, were denied an exemption despite being comparable in all other ways, you probably have some leverage.

Your first step should be to inform your company in writing of the discrepancy you see; after that, you should consider making an EEO complaint and/or consulting a lawyer. You are likely protected from retaliation under several laws.

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Kellee Boulais Kruse is a principal at The Employment Law Group, P.C. Madeline Cook is a former TELG associate.

 

 

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» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: Welcome, everyone, to our preview of this year’s “Changing Currents in Employment Law,” the D.C. Bar’s fall employment law CLE. I am Scott Oswald. I am faculty chair of “Changing Currents in Employment Law,” and today, I am joined by Jennifer Everett. Jennifer is a partner at Jones Day in their D.C office, and Jennifer will be co-moderating a panel, “Vulnerable to Attack: The Growth of Cybersecurity Whistleblowing.”

Jennifer, hi.

Jennifer Everett: Thanks so much, Scott. It’s a pleasure to meet everyone, and I look forward to the panel coming up and chatting with everyone about this fantastic and actually very timely topic.

You know, from federal agencies to private hospitals, really the past year has demonstrated the growing sophistication of cybersecurity attacks and the need to safeguard data and networks from potential threat actors. So, during our panel, myself and my other co-panelist, we’ll be talking about not only the risks associated in terms of this ever-changing environment but also about the risks with and possibilities of potential whistleblowers initiating what’s called a false claim action on behalf of federal government. [We’ll be] exploring what those initiations, those claims, may look like and what companies in particular can do to mitigate, prepare, and respond to not only the cybersecurity threat but to the federal government’s increasing focus on protecting data.

I look forward to speaking about this panel.

Oswald: One of the problems of the federal government is it’s [not only] responsible for its own networks, but there may be a potential vulnerability with one of its contractors too, right?

Everett: That’s correct. That’s exactly correct, and because of that, the contractors are themselves not only subject to their cybersecurity requirements — by way of contract, for example — but again, the government is increasingly focused on cybersecurity risks, increasing cybersecurity measures, and of course, reporting requirements in the event that there’s a vulnerability or potential issue. Likewise, companies or individuals are empowered by the False Claims Act in particular to file or raise a claim in the event that there’s non-compliance. So you’re exactly right, Scott.

Oswald: So, let’s say I’m in the audience. I’m attending your panel. What are one or two takeaways that I might take with me after the panel, after hearing your presentation?

Everett: Great. So, just a couple of points first: For anyone who’s listening to the panel, my co-panelist and I will be giving you an overview of the False Claims Act, or the FCA, which imposes liability on anyone who knowingly uses or causes abuse of a federal statement or a false record. We’ll likewise be talking about (and particularly my co-panelist will be focusing on) the possibility for, again, the whistleblower themselves or private persons, referred to as qui tam relators, to initiate FCA claims and actions on behalf of the government.

Then we’ll go into a deep dive into these cybersecurity requirements that we talked about earlier that the government’s focusing on.

Oswald: So Jennifer, what’s the kind of advice that you’re giving to your clients right now, especially federal government contractors who might be dealing with issues relating to cybersecurity breaches?

Everett: Great question, Scott. Cybersecurity compliance, as I said, is a really increasing enforcement area, and this really is not just in connection with data breaches but also with respect to representations that are made to the government. Put simply, there is liability for false cybersecurity certifications, and those are not dependent only on data breaches.

Companies can be guilty of violating the FCA even when they’re providing non-conforming products out of some sort of technical failure, so it’s important to remember that it’s not just the data breach that can get someone into potential liability or harm or other reporting requirements, but it’s also the representations that are being made with respect to the product of their services. So, we’re encouraged to look very carefully at what cybersecurity controls they have in place and ensure that they are able to actually be the representations that they’re asserting, right? This means that they should be carefully thinking not only with respect to strong internal reporting remediation efforts but also sort of thinking carefully and having a response reporting place in the event that there are possible vulnerabilities so that individuals who are close to or have some familiarity with the product or services have a means to raise or address potential claims or concerns. [That way,] the company can 1) be aware of vulnerabilities, 2) mitigate, and 3) give employees a way to be a part of and ensure that we are not making any false representations to the government with respect to products or services.

Oswald: When employees don’t feel like they’re being heard, that’s what leads to whistleblowing, right?

Everett: That’s exactly right. It’s important to remember, Scott, that retaliation against whistleblowers is prohibited under several enforcement schemes, including the FCA, so again, having a strong sort of internal robust reporting space that will allow whistleblowers or individuals a way to raise potential claims and help mitigate the potential for any sort of FCA claim [is important].

Oswald: Jennifer Everett, we are so grateful to you. We look forward your and Colette Matzzie’s presentation, and we look forward to seeing each of you at this year’s “Changing Currents in Employment Law” on Tuesday, October 26th at 6:00pm. You can find us at dcbar.org.

Everett: Thanks, Scott.

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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Jennifer Everett is a partner at Jones Day.

 

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» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

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» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: Welcome, everyone, to our preview of this year’s “Changing Currents in Employment Law,” the D.C. Bar’s CLE on October 26 this fall. I’m Scott Oswald. I am faculty chair of “Changing Currents in Employment Law,” and today for our preview, we have with us Jim Coleman. He is a partner at Costangy Brooks, Smith and Prophete, and he is going to be moderating a panel: “About Time: Virginia Raises the Stakes Dramatically on Wage-and-Hour Claims.”

Hi, Jim.

Jim Coleman: Hi, Scott. How are you?

Oswald: I’m doing well. Tell us a little about your panel and your co-panelist.

Coleman: This is going to be a panel with a perspective from the defense bar, [which] will be me, and from the plaintiff’s bar, [which] will be Mark Hanna. The two of us will cover all the new wage and hour laws that have arisen in the last 18 months or so in Virginia and try to give everybody the perspective from both sides.

Oswald: So, I’ve heard and read that the new wage and hour laws are revolutionary for Virginia, and you know, sometimes when I read something like that, I think it’s an exaggeration, Jim, but for Virginia, it actually might hit the mark, right?

Coleman: I would agree completely. That is not an overstatement. Up until recently, Virginia generally
has not been a state that was very active in putting out employee-favorable legislation really anywhere in the employment arena — whether it be discrimination, wage and hour, whatever — and starting about a year and a half ago, things changed very dramatically in Richmond, and there’s a whole new host of employment laws now on the books.

Oswald: So if I attend “Changing Currents” this fall, and I’m listening to your panel, what are maybe one or two things that I’m going to take away from it?

Coleman: What I would like to do is focus a bit on the overtime law because previously there was no overtime requirement under Virginia law. Employers simply had to deal with the requirements of federal law, the Fair Labor Standards Act. Now, employers in Virginia need to be concerned with both the Fair Labor Standards Act and Virginia law, and make no mistake, there are differences in Virginia law. There are less exemptions from overtime under the Virginia law than under the federal law. There are greater remedies, and there are procedural advantages — all that favor employees.

Oswald: So, what kind of advice are you giving your employer clients right now who are operating in Virginia, Jim?

Coleman: It’s a good question. What I’m trying to do is highlight the differences, what they can no longer
do in Virginia. I have a lot of clients that are multi-state, and so you know, they have a tough job of trying to comply with [all the different laws]. There’s no federal preemption in the wage and hour area at all. So, they’ve got to always stay on their toes with regard to state law requirements. I’m trying to make sure they understand the differences, how Virginia law is more narrow in terms of exemptions, and then a little bit of a lesson on why they don’t want to be a defendant in a Virginia state court in a wage and hour lawsuit.

Oswald: Jim, thank you. And we look forward to seeing each of you at this year’s “Changing Currents in
Employment Law” on Tuesday, October 26th at 6:00 pm. We look forward to seeing you then.

Coleman: Thank you. I’m looking forward to it.

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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Jim Coleman is a partner at Costangy Brooks, Smith & Prophete LLP.

 

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» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

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