Should I Stay or Should I Go?

Should I Stay or Should I…

As Michigan businesses continue to reopen, employees are rapidly returning to the workplaces they left behind.

Or are they?

While many workers are eager to return to “brick and mortar” offices, others may feel reluctant to come back, like employees in one of the CDC’s “high risk” categories. As some employees request to continue telecommuting arrangements, companies should consider the following:

  • Policy enactment/enforcement. Employers should review handbooks and other policy documents to ensure current practices are consistent with existing policies. Telecommuting requests should be processed consistently and evenhandedly, being mindful to afford similar treatment to similarly situated workers.
  • Wage and hour regulations. Because the Fair Labor Standards Act requires employees to be paid for all hours worked, clear work-from-home policies are paramount, and employers should equip workers with timekeeping tools to reduce the risk of minimum wage and overtime violations. Among other things, employees should be required to regularly submit hours and employers should prohibit unauthorized work. If a worker’s position would make accurate timekeeping from home difficult or unworkable, the company should limit or eliminate telecommuting as an option.
  • The ADA. Even where written policies prohibit telecommuting, the Americans with Disabilities Act may require consideration of such a request as a reasonable accommodation. While courts have tended to afford the benefit of the doubt to businesses as to whether working from home is a reasonable accommodation, the shutdown has demonstrated that telecommuting can be successful, which might help to establish the reasonableness of telecommuting.

Finally, while many companies may desire employees to be physically present, others may actually prefer that employees – especially those perceived as “high risk” – continue to telecommute. Such employers must take care not to unlawfully discriminate against protected classes of employees in this regard. For instance, updated guidance issued by the EEOC on June 12 cautions that the Age Discrimination in Employment Act “would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

The legal landscape is rapidly evolving and much uncertainty remains. Employers should carefully analyze each situation that arises and work with employees to identify an appropriate resolution consistent with company policies.

Questions? Contact us today at or (248) 477-6300.

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