Returning to Work While COVID-19 Is Present

Lindsey Novak on

Employment lawyers around the country, including Jeff Beemer of Dickinson Wright PLLC, have been asked the same question recently: When is the right time for employers to require employees to return to working in the office? A typical response is: "When everyone has had the opportunity to get fully vaccinated." But this may not be as simple as it sounds. It depends on whether an employee's essential job functions include in-person attendance, as in positions where work can only be done at the office. Also, companies that implement mandatory vaccination policies must be prepared to make exceptions for employees who cannot receive the vaccine because of a disability or religious beliefs.

According to Beemer, "One reason to bring employees back to the office may be the company's compliance with wage and laws." Employers must pay their "nonexempt" employees (i.e., employees who are not exempt from the requirement to pay overtime under the Fair Labor Standards Act) overtime for all hours worked over 40 in a workweek. Companies must pay overtime to a nonexempt employee even if the employee does not request permission to work overtime in accordance with company policy. Employers may find it easier to enforce their overtime policies when they can supervise employees working in the office rather than remotely.

For example, let's say that Joe has a Friday deadline to finish a project. He knows without working overtime, he will not achieve it. If he can meet the deadline by working three hours overtime, he may choose to work overtime to get the job done. Though bosses remind employees not to work overtime unless approved in advance, Joe made the Friday deadline a priority and worked the overtime. Even though Joe's overtime was not approved, the company still has to pay it. Companies might find it easier to avoid situations like these if employees are back in the office.

Of course, the decision to bring employees back to work in the office centers around safety. The Occupational Safety and Health Administration issued guidance to employers on COVID-19 prevention and mitigation in January. This guidance includes installing physical barriers, requiring employees to wear masks and improving ventilation. Employers also must adhere to the OSHA "general duty" clause, which requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm."

Employees who contract a disease outside of work typically cannot claim workers' compensation benefits -- but the remedy for employees who contract a disease at work is in workers' compensation under the "exclusive remedy rule." Employees who use public transportation or carpools with other employees usually cannot claim workers' compensation benefits if they catch COVID-19 because injuries or illnesses that occur during an employee's commute to and from work generally are not covered by workers' compensation laws.

COVID-19 falls in a gray area because common diseases such as colds and the flu are generally not covered by workers' compensation. According to Beemer, many states have passed legislation or issued executive orders that make clear that employees who contract COVID-19 in the workplace are entitled to these benefits. Some states, such as Illinois, New Jersey and Vermont, have passed laws that cover all "essential workers" who catch COVID-19. Other states, such as Kentucky, provide coverage to some essential workers such as grocery store employees. In California and Wyoming, however, all employees who come down with COVID-19 at work are covered by workers' compensation. Some states have adopted legislation that if an employee contracts COVID-19 by coming into work or by working there, they can recover the benefits, but those claims have a financial cap.


Some employees who claim they contracted COVID-19 at work have sued their employers in tort. In Illinois, the estate of an employee who died from COVID-19 in March 2020, at the onset of the pandemic, filed a lawsuit against Walmart for negligence. These cases are still in their early stages, so there is not much guidance from the courts.

A favorable benefit for employees has been created in Michigan; OSHA has established an Emergency Rule 5(8): "The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely." Perhaps such a rule will be considered by other states, as well.

A warning for those employees who have avoided or fought against getting vaccinated: They will be removed from the public and sent to the dungeon. Well, not really, but naysayers take note: In 1905, in Jacobson v. Commonwealth of Massachusetts, the Supreme Court upheld the right of the state of Massachusetts to require immunization against smallpox during an outbreak.


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