“Because I’m worth it” is not an acceptable reason to work from home during the coronavirus pandemic, even if L’Oréal is your employer.
Forget the famous tagline, because the U.S. arm of the international beauty brand is insisting that its 12,000 employees start “gradually” returning to the company’s worksites, despite the ongoing threat of COVID-19. Only those employees with a documented underlying medical condition that puts them at greater risk of contracting COVID-19, or developing a complication, may apply for a work-from-home extension, the company confirmed to CBS MoneyWatch.
An employee’s word isn’t sufficient. Anyone seeking a medical exemption from returning to in-office work is required to provide proof of their condition, such as a doctor’s note.
“With health and safety as our highest priority, L’Oréal USA has proactively provided extended work-from-home accommodations to employees who have a medical condition that may make them more vulnerable to a COVID-19 related infection or complication according to guidance from the Centers for Disease Control,” the company said in a statement to CBS MoneyWatch.
These include asthma, cancer, pregnancy, high blood pressure and obesity, among other conditions. The company made clear that it will not ask employees for their complete medical histories or actual medical records.
L’Oréal’s policy on returning personnel to its offices stands in stark contrast to the more flexible arrangements in place at other multinational corporations, including Facebook, Google, Square, and Twitter. These companies have indicated thatat least until the end of the year, if not indefinitely.
“Simple fear” won’t earn you an exemption
It is perfectly legal for employers, under the Americans with Disabilities Act, to ask employees for medical documentation of a condition to be granted an accommodation, according to Helen Rella, a New York-based employment attorney at law firm Wilk Auslander.
Companies also have the right to set the terms and conditions of employment, including requiring that employees actually report to the workplace, Rella said.
“That’s one essential condition that’s never been questioned, and as a matter of law, an employer absolutely has the right to request that employees show up for work, and people who don’t show up can be deemed to have resigned their employment or they can be terminated,” she said.
“Simple fear of contracting COVID-19 is not a basis to refuse to return to work,” Rella added.
An employer does not, however, have the right to request an employee’s broad medical history.
L’Oréal is an outlier
Legal experts, however, are divided over whether L’Oréal’s policy is a wise one.
While it’s not illegal to require proof of a medical condition to qualify for a work-from-home exemption, another legal expert cautioned against companies implementing such policies.
“An employer can set the place and manner of an employee’s employment — the law permits that. But I think they are an outlier, and it’s a bad idea,” said R. Scott Oswald, a labor and employment attorney and managing principal of the Employment Law Group in Washington, D.C.
Companies that in the earlier stages of the pandemic were planning on returning workers to their offices have largely reversed course, according to Oswold.
He thinks forcing employees back to the office, when they have the ability to work from home, could lead to negative outcomes for both parties.
“It’s a bad idea legally and a bad idea in terms of the morale of the workforce,” Oswald said.
That’s because there’s a patchwork of state and federal laws that define what makes for a safe workplace — and L’Oreal has U.S. offices across 13 different states.
“There are different standards for legally bringing people back and for employers; it’s a legal minefield,” Oswald added.
When you think you’re worth it, but your company doesn’t
Oswald is advising employees who don’t qualify for an exemption, yet don’t feel comfortable returning to their worksites, to speak up — and to encourage their colleagues to do so as well.
“There is strength in numbers, and often an employer would change their policy in the face of widespread opposition to returning to the workplace,” he said.
They should also ask their employer about the safety of the workplace.
“There are very few office spaces that are going to be able to fit the bill where you are truly going to be able to create a workspace that meets both federal and state guidelines,” Oswald said. “There will likely be something in an employer’s plan that does not jibe with state or federal regulations, and once the employee points that out, that is their ticket for working from home.”