As the new coronavirus continues to spread, more and more businesses are advising or requiring employees to work from home. While this offers a modicum of relief for some, there remains a large contingent of the workforce that either (1) does not have a job that lends itself to the ability to work remotely, or (2) works for a company that, even in the face of the coronavirus, will not permit its employees to work from home. If you find yourself experiencing the same, what are your options? And how might you prevail?
Absent an internal policy or statutory right permitting someone to work from home (e.g., under a leave law or reasonable accommodation law), there is not much an employee can do when an employer says “no.” They can submit, try their powers of persuasion or simply walk out. That said, we have suggestions for navigating path No. 2 and a few considerations for option No. 3.
First, if you have a role within your company that you could handle from home, begin with a dialogue with your employer. Like any negotiation, preparation is key. For the best chance of success and prevailing upon your boss, be sure to have all of your information in good order. Winging it will probably not get you very far. Find examples of companies in your city and your industry allowing employees to work remotely. You will likely find many.
Next, have a detailed plan of how you would achieve your work objectives from home. Technology has advanced tremendously in the past few years and the capabilities are unprecedented. Also address how you would collaborate with team members and external parties, as appropriate. The employer needs to know that workflow and the bottom line will not suffer.
The idea of an indefinite work-from-home period may be daunting for some employers. Offer to try it for a limited period, such as two to three days, or even just a day. And then agree to reassess the situation, together with your employer. From there, you can extend the period a few days at a time and continue to monitor the situation, encouraging employer feedback.
Follow up your conversation with a written memo reiterating your plan and addressing the reasons you have requested to work from home: the CDC is recommending “social distancing;” your commute requires the use of mass transit; you do not want to increase your exposure to possible contagions; and you have a duty to advocate for the safety of your family. Draw the picture that it would be better for you, and your company, to have you working from home right now by focusing on the productivity piece of the puzzle.
Assuming it is still a no-go for your boss, you would have written proof that you tried to initiate a collaborative dialogue with your boss and were willing to maintain your workload and responsibilities, in the face of crisis. But being concerned for the safety and well-being of your family during this precarious time, you had no option but to leave the office. That pattern of facts might come in handy down the line, should you face termination or disciplinary actions.
Under the occupational safety and health laws (commonly known as OSHA laws), employers are prohibited from terminating an employee who in good faith refuses to expose themselves to a dangerous job condition and who has no reasonable alternative but to avoid the workplace. However, the condition causing your fear must be objectively reasonable—it can’t simply be the potential for unsafe working conditions. Section 7 of the National Labor Relations Act also provides protections against discharge if an employee’s refusal is part of a concerted protest against unsafe working conditions.
Those same legal protections might be afforded to you if you’re unable to work from home due to your type of job and/or role within the company. While you might not be entitled to wages for missed work, there might (at least) be an argument for job preservation. That is, once it’s safe for you to return to work, you’ll still have your old role to which to return.
These are uncertain times for everyone. Employees and employers, alike, are encouraged to engage in proactive conciliatory discussions and recognize that what we do, and how we respond, now will have long-term implications for both companies and workers.
Debi Yadegari is the founder and CEO of MommaWork, a management consulting firm that strategically partners with companies to provide truly invaluable working parent support, which has a direct return on investment for the employer. MommaWork offers support services for the employer and working parent, because they believe working parents should not have to choose between their personal goals and professional success.