Cook
With many employers requiring a return to in-person work — often with an accompanying COVID-19 vaccination mandate — workers are weighing their options. What's a legally viable reason for continuing to work at home? Our firm examines 11 common stay-at-home arguments, from health concerns to personal liberty to unvaccinated kids, and offers perspective on whether they're likely to gain traction.
This article by
TELG principal Kellee Boulais Kruse and former associate Madeline Cook was published by The Employment Law Group, P.C. on August 30, 2021.
What If You Don’t Want to Return to In-Person Work?
11 Arguments to Keep Working from Home — and Their Chance of Success
By Kellee Boulais Kruse and Madeline Cook
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.
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.
