Employer not allowing me to telework during COVID-19

Question

I work for a small start-up company with less than 20 employees in the USA. I am a foreign national on a work visa and I joined the company a few months back. My work involves programming and data analysis, which can be done remotely.

Recently HR circulated an email stating that given the COVID-19 situation, either working from home or working in the office is acceptable and up to the employee's choice. Given this, many employees have chosen to work from home. However, when I expressed my choice to telework, one of the company's co-founders (my boss) rejected my request saying things like:

• "We do not allow newly joined employees to telework"
• "I will have reduced salary if I work from home"
• "Currently there is a lot of unemployment because of slowing economy"

I construed some of the above statements as a threat to terminate my employment if I don't work from the office. I feel that I am being exploited because of my immigration status and/or lack of experience.

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Questions:

• How should I handle this situation?
• Do I have the right to telework during COVID-19 for my safety?
• How can I convince my boss to allow me to work from home?
• Where can I get help?

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Edit 1:

My boss is not a technical person and although he is aware of what I work on, the day-to-day nitty-gritty stuff is handled by another person -- who works remotely. I have daily virtual meetings and phone calls with him to make sure that I am on the right track and making progress. His feedback has always been positive about the work I have done so far since I joined the company. I am aware that this is difficult situation for the company and I am willing to push myself to get the work done, but feel like being discriminated to not have an option to work from home.

Answer 1

We can't know the motivation of your HR and also management to issue those statements. So I can only give some thoughts to resolve that. Please be aware this situation is new and hard for everyone so your company probably is in a difficult situation that they never had before and there are no experienced solutions to it.

First of all in my opinion you should not fix this problem to your nationality but on yout status as a new employee that could need more personal assistance than long term employees.

Then there is a serious difference in what your HR said and what your boss said. Try to resolve this, ask HR how the conditions really are and express that their mail is not absolutely synchronized with what your boss said. It's their job to discuss that with management.

Find out what your boss' reasons are to not let you work from home. Suggest phone calls or online conferences to stay in touch.
Find out if you could live with a pay cut for a month or two if this can make them accept your home office work.
Find out what that statement with unemployment was meant to tell you.

Make clear to your company that you want to get through this crisis with them and you are willing to accept cuts if you are able to take them. Discuss what you can do to make them see you are really working at home, in case this is the problem.

Last but not least, evaluate your commuting situation. If you can go there by your own car or bike and the office is almost empty then you are quite safe. If you have to use public transport with lots of other people then it would be a good reason to stay at home and accept some pay cut.

Answer 2

I construed some of the above statements as a threat to terminate my employment if I don't work from the office.

It is.

How should I handle this situation?

If you don't want to lose the job take the option allowing you to work from home.

How can I convince my boss to allow me to work from home?

He's given you the option of doing so at reduced pay.

There are lot of legitimate reasons that employees may not even be given an option to work from home. On top of that the company may be worried about it's own viability. You pushing at a time when they need everyone pulling together is not a great sign that you're an employee worth keeping.

Answer 3

First of all, going forward make sure that you conduct as much of this exchange in writing as possible.

Where are you located physically? It may be against current mandates for you to even be going into work in person right now depending on your location, let alone for them to require you to.

They may or may not be acting legally. However, it sounds like they are in a tight spot and possibly not thinking rationally in terms of conducting themselves in a legally airtight way.

Here is what I would do, AFTER forwarding your boss's correspondence to HR and inquiring politely as to how these two instructions fit together (maybe your boss is hoping that he can coerce you to "voluntarily choose" not to accept the option HR is giving you, when really you DO have that option-- and it sounds like you do, to me), and assuming that you find yourself in effectively the same situation after attempting that resolution:

Work from home and take the reduced pay. In terms of expected value, you are not going to be earning much if you are sick in the hospital or dead, and you may lose money if this trickles out into your family. (The true seriousness of this situation has failed to hit many people in the US right now; do not allow your judgement to be altered by someone in authority's judgement except insofar as you must act in your own self-interest under their power.) Make sure that this arrangement, and the fact that you agreed to do so under duress, is well-documented. After the dust clears from CoVid, then you can look into switching jobs if desired, and once that is done, you can attempt to recoup your losses legally if possible. I suspect that a lot of employers are going to wind up in some sort of trouble, civilly or perhaps even criminally, for attempting to force their employees' exposure to hazardous conditions. If the building had a carbon monoxide leak and they knew and were pressuring you to come in under the same circumstances, what would happen? The fact that this is global is clouding people's judgement about the nature of the situation imo.

But another thing to keep in mind is that the company may suffer substantially if they fail to exercise good judgement-- what if a lot of their employees become compromised? And if the stress is already getting to them now-- how much worse will things get administratively? So there may or may not even be anyone TO recoup from if they go under, looking at the extreme end of outcomes.

Answer 4

I'll second the thought that this is new, and management and HR are learning right along side of the employees and the government on this one. No one has a playbook stashed away for exactly how to handle this.

1 - Regional Issues - Do I have the right to telework during COVID-19 for my safety?

A big chunk of this is going to be specifically where you are and specifically how your local government is handling this - not just your country, but your state and city as well. And the rules are changing fast. You'll get the most mileage on this from knowing the rules at both your home and your work locations, and then reviewing them with HR, who should also have staff that is keeping up to date on them.

Getting into whether it's a "right" (as in "don't I have the right to keep myself and my family safe from working at home?") is actually extremely specific. Both for your location and your job. Until/Unless the government in your location has laid down mandates, the legal ground for saying you should be paid the same to work from home (WFH) is going to be squishy enough that the real question is "are the legal fees for the court case worth it?"

Another huge question is the actual risk - which is also location specific - in that you have the risk your commute and the risk from being near the general population. Both of which are significantly higher in a place like NYC than they are in a place like Alaska - which has a way lower population density, lower infection rate (at the time of the writing of this post) and a very different way of commuting.

2 - The Organization - How can I convince my boss to allow me to work from home?

When you want something the organization/boss doesn't want, long term you're not going to get a lot out of making this into a direct confrontation. You might win the short term by making enough threats, but long term if you haven't actually convinced the boss that it's a good plan, then you're not going to build a great reputation or sense of trust in the organization. And presumably you want to be working with this company for the long haul.

What I hear, in the arguments your boss gave is that he's worried about you onboarding well, and the loss to company productivity if you don't onboard and get work done in the time they planned for. Presumably your company has deadlines and quality standards that relate to it's business and failing to meet those goals will have negative consequences. Like most knowledge work jobs, I suspect the consequences could be much bigger than just the impact to you - it could hurt your team, division, company or customers.

And this guy (as you said) isn't technical - so he's trusting others to onboard you and give your work the seal of approval.

So... in terms of getting what you want:

• How many coworkers of yours are working from home 100% or nearly 100% - do you actually get anything out of coming into the office.... if so - what?
• What has been explained, so far, in terms of the expectations and processes that occur as part of your onboarding? Have any of them seemed like things you couldn't do working remotely. I suspect your answer is "No!", but it's good to have a clear sense of what they actually are. Keep in mind there's an X factor - that in many offices, when you have a new guy around, you naturally include him/her in stuff because you seem him/her in front of you... and that's hard to replicate in a WFH environment. So some of this is figuring out how you compensate for that sort of stuff that isn't so official but can mean a LOT in an office that is high on relationships and low on procedures.
• Beyond coworkers, what are the other critical stakeholders and how can you engage them from home?

If you can think this through - ideally with the help of a coworker that is your peer in skills and job role (or close to it) then formalize a WFH onboarding plan and ask your boss to review it. Try to eliminate the technical jargon and stick to the communication type stuff which is probably where your boss is seeing the risk. The strategy is even more powerful if you can clearly articulate how you can create the same great output from home that you would in the office in terms of the business drivers.

NOTE - if everyone in your office is still working in your office, including the boss - this may be an impossible sell. While it should be OK for you to manage your personal health risks differently from your team, as the new guy it can be REALLY hard to sell that if everyone else is taking the risk. Peer pressure shouldn't be the management strategy but people are funny.

3 - People - Where can I get help? (sort of)

A note about people - humans aren't logical. Not even at the best of times.

These are not the best of times.

A few things I've seen all over since the quarantines started in my vicinity:

• Everyone and every business is being impacted in ways I (or anyone) would not have expected. Whether it's family health stuff, direct business risks (customers not buying products/services), supply chain impacts, logistics impacts or you name it - businesses are feeling pressure in ways they never felt before. And even those in relatively good positions in work and home life feel the stress of those around them and the shortages caused by hoarding behavior and changes in patterns.

• When the world is this full of uncertainty, people get kind of crazy. They get conservative in strange ways and risk taking in strange ways. And they have a desperately hard time articulating that. I've found that my bosses at work are much worse at absorbing information, and often have a really hard time parsing through a logical argument that would have been trivial for them on a normal work day. They have a kind of mental overload that is making every day more exhausting.

Getting through a confrontational situation with anyone in this state is really hard.

Anything you do to:

• increase certainty/information - like giving a good solid (simple!!!) plan for how to onboard from home
• improve your connection with the decision maker (the boss) to get him to think of you more like a trusted employee that he knows and believes in and less like that new guy whose name he just learned
• simplify, simplify, simplify

Will be appreciated and will get you more options for working from home.

Another angle, is the negotiation tactic - that if you can't completely quarantine, can the company help you figure out a way to support the business while staying safer than normal. For example:

• if you don't normally get free parking, can they cover parking for the next month?
• can you come in only certain days and WFH others? or come in only in the afternoon for a quick sync?
• can you shorten the onboarding time, and WFH soon, if not immediately?
• will there be social distancing in the office?

4 - Human Resources

Depending on the company, this group can be a valuable resource --or-- they can be the kind of added threatening pressure on your boss that will set a bad tone.

I would go to them, but with the spirit of "I want to do do what you suggest and WFH, but I'm trying to work out a pattern with my boss that works for him... do you have suggestions?" That gives them the option of giving you some advice or talking privately with your boss if he's the one in the wrong. And it shows you want to work within the company infrastructure, and not fight it.

I would suggest being more direct and asking for additional HR support if you have yourself or a family member that lives with you that is in the higher risk groups for COVID-19. You don't have to fully disclose the reason for the risk (ie, you don't have to say "I'm a gay man with AIDS", you can say "I am in a high risk group as identified by the CDC") - but if you are a family member that you care for or live with (and therefor you can't socially distance) - you should escalate this with HR and be more insistent. It's not quite a "disability" - but I suspect that there will be evolving legal cases on this... but figuring out the right legal way to handle all this will probably take longer than the quarantine.

The real goal is for you to be able to WFH and at full salary while keeping a good rep and good communication going.