As many return to the office, some are asking, 'Do I have to go back?'

Posted at 5:00 AM, Jul 08, 2021

CINCINNATI — For Brock Dalton, the pandemic caused him to start his career quite differently from what he imagined. He interned remotely.

“It was entirely remote three months from a desk in my room," he said. "It wasn’t bad. I would have preferred some time in the office.”

But he did see advantages to working at home and hopes to find the best of both worlds with work-life balance included.

“I think, going forward, I’d prefer a hybrid approach," Dalton said. “I have no problem if it was still five days a week in the office. But, a couple of days from home would be nice once in a while so you can check out early.”

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It's a desire many are considering, according to local legal experts. We talked to area employment attorneys who are hearing from people and companies looking for legal advice on how to navigate the "return to work" landscape. They say workers who have been at home for more than a year have a lot of questions about what they will encounter in the workplace in terms of COVID vaccine requirements.

And there are workers who want to know what legal rights they have to continue to work from home.

“The question is, do I have to go back?” said Steven Imm, an employment law attorney with the Finney Law Firm at their Eastgate office.

He said there are cases when some workers may be able to ask their employer to make accommodations for them to work from home if they have a qualifying disability. A medical or psychological condition may be covered under the Americans with Disabilities Act.

“If the accommodation necessitates that they work from home or if that would allow them to perform the essential functions of their job by working from home then the employer may have the obligation to allow them to continue to do that,” Imm said.

He also believes that legal arguments over reasonable accommodations could begin to lean more toward the employee because the pandemic has shown many workers were able to work remotely.

“Before the pandemic, courts were somewhat reluctant to question the employer's ability to force work in the office and usually an employer could say no, you have to be here,” he said.

Meanwhile, some companies are looking at what they need to do to create a safe work environment for the influx of workers returning to offices and other workspaces, said Chad Willits, a partner with Reminger Law Firm in Cincinnati. He is also a member of the Greater Cincinnati Human Resources Association, an affiliate of the Society for Human Resource Management.

Staggered work shifts, sanitation practices and continued social distancing are all options that some employers are considering.

“Health and safety protocols are important, starting with an assessment of the workplace," Willits said. "Where are the high traffic areas? Where are people going to be congregating? What risks are present?”

Two main questions seem to be on everyone's mind: Can an employer require a worker to be vaccinated against COVID-19? Can an employer ask a worker if he or she has been vaccinated?

Both Imm and Willits said employers have the right to require vaccinations, but they added that employers should think hard about making it mandatory.

“Companies can legally require their employees to get vaccinated before they return to work, subject to certain exceptions,” Willits said, adding those exceptions can include medical conditions and religious beliefs.

He said the rationale for allowing the requirement is that “requiring a vaccination is a safety-based job qualification because it poses that direct threat to other people, other co-workers, other customers.”

However, Imm said his number one tip to companies is to avoid making vaccinations a requirement.

“You legally may be entitled to do that, but for purposes of employee morale and for purposes of limiting possible conflict with employees, I don’t think that’s necessary,” he said.

Willits agreed.

"Maybe recommendation is enough," Willits said. "Maybe incentivizing, nudging people in a good way is a different or better way to handle it.”

Employers can also ask workers about their vaccination status and require documentation, according to Willits, because it is within the context of a pandemic.

On the other hand, Imm cautions that asking about an employee's vaccination status gets close to privacy rights.

“I would urge employers to be very careful about that," he said. "To do what they can to balance the rights of the employees’ right to privacy with the employees’ right to health and safety."

Imm added it's important for workers to know their rights and to know what information they have to share with their employer and what they don't.

"You do have certain rights under the ADA," Imm said. "You do have certain rights to have your sincerely-held religious beliefs respected. And you do have certain rights to privacy.”

“With a lot of these issues, whether it’s disabilities or accommodations, vaccinations, or safety, there are a lot of moving parts and a lot of variables,” Willits said.

That includes discouraging employees from wading into contentious conversations on topics such as whether to wear a mask. Willits said as workers return, there may be a need for a refresher of the company's anti-harassment policy.

“These are the expectations, and this is what you do if there’s a problem and hopefully you head that off at the pass and kind of prevent it rather than have to deal with it afterwards,” he said.