Key Takeaways
- Employers have a continuing legal duty to keep the workplace free of recognized hazards, and written, acknowledged safety policies help them show they met it.
- When an employee asks to keep working remotely for a medical reason, the employer should engage in the ADA interactive process and document its reasoning.
- An employer that allowed remote work during the pandemic is not automatically required to continue it, but that history can bear on whether remote work is feasible.
As employees return to the office, how responsible is an employer for their health and safety, and what happens when someone simply does not want to come back?
In this TalksOnLaw Brief, Joel Cohen talks with labor attorney Sara Kalis, now a partner at Morgan Lewis and at Paul Hastings at the time of this conversation, about the liability questions employers faced in bringing workers back during the COVID-19 pandemic and the practical steps that make a return defensible.
A Duty to Maintain a Safe Workplace
Kalis explains that employers have an obligation to maintain a safe workplace, including OSHA obligations to follow protocols that meet safety standards. That duty cannot be waived, yet employers also cannot force employees to keep their distance when they choose not to. Her solution is documentation: up-to-date, compliant policies, training on those policies, and employee acknowledgments, which together give an employer the best defense available, though never a guarantee. Because guidance from different sources kept changing, she advised clients focused on litigation risk to follow the most restrictive applicable guidance as the most defensible course.
Communicating the Return
She stresses that the post-COVID office would look different, at least in the near term. Employers should tell workers about the efforts they are making, which improves morale, and communicate requirements ahead of time, such as health checks or symptom certifications. She also recommends reinforcing sick leave policies so that sick employees stay home, while keeping up with the many state and local leave changes.
Requests to Keep Working Remotely
For employees reluctant to return, Kalis says employers should ask whether they have a legal obligation to accommodate the request and engage in the interactive process: a conversation about whether the employee's needs can be reasonably accommodated, or whether doing so would be an undue hardship. Remote work that once looked like a hardship may not look that way after a year of it. She recommends putting temporary arrangements in writing, recognizing that one accommodation sets a precedent, and documenting why some roles, such as an in-person sales manager, require presence as an essential function.
What to Know Now
The core duties Kalis describes remain in place. OSHA's general duty clause still requires a workplace free from recognized hazards, while the COVID-specific federal standards have largely ended: the Supreme Court stayed OSHA's vaccine-or-test rule for large employers in NFIB v. OSHA in 2022, and in 2025 OSHA proposed removing what remained of its health care COVID-19 standard. The public health emergency ended in May 2023. On remote work, the EEOC's guidance says an employer that allowed telework during the pandemic need not continue it permanently, though that experience may be relevant to whether telework is feasible for a particular job; courts weigh these requests case by case, often turning on whether in-person work is an essential function. The 2023 Pregnant Workers Fairness Act adds a separate accommodation duty. Her advice to document decisions and treat employees consistently remains sound practice.
