Reflections on the Law during the COVID-19 Pandemic

Part 1: Employment Rights
by Patrick S. Cassidy, Esq. President, the WALS Foundation

The Wheeling Academy of Law & Science – WALS Foundation -brings informative educational programs on issues of law and other public concerns (such as climate change) to our community, including continuing legal education to area lawyers and other interested individuals.

Since this is not the best time to be holding public programs, WALS intends to provide a series of “Reflections on the Law during the COVID-19 Pandemic,” for educational purposes only. These are not intended to constitute “legal advice” to any person or group in any particular situation. Rather, in this time of pandemic, these offerings are intended to stimulate thought and refection before decisions are made by lawyers, HR personnel, employees, small businesses and others, in trying to do the “right thing” by their employees.

Accordingly, no employee, business owner, lawyer, or anyone else should rely on these “reflections” with respect to any particular planned employment decision, but should consult with their own attorney or legal adviser before making any decision of legal consequence.

Today’s question to consider is:

“Can an employer force an employee to come to work when the employee is fearful about ‘face-to-face’ interaction and wants to work remotely to ensure social distancing?”

The answer:

Maybe. Maybe not. But here are some pertinent reflections that may be relevant to the determination.

Employee safety laws, such as OSHA, do not appear to have any clear COVID-19 or other infectious-disease rules (except in the area of necessitating health care protective-gear) requiring any particular “non-health care employer” actions. However, most state statutes require an employer to offer a “safe place” of employment to its workers, and intentional subjection of an employee to an unsafe workplace may be actionable over and above the usual workers’ compensation protections for work-acquired illnesses (which, in any event, would have to be proven to have been acquired at work).

Thus, at first blush, the question would be whether any particular employer at the present time, in requiring employees to “come in to work,” would be offering employees a “safe-place” to work. The general rule is that an employee is required to follow a generally accepted work rule, so the broad answer is that an employee may be subject to discipline, up to discharge, for not following an order to “come in to work,” which rule would be considered, in the usual situation, a “prerogative” of management.

However, if there is a union at the company, this may be a matter for pre-determination, resolution, or challenge to any particular disciplinary action through the grievance-procedure route.

In a NON-Union work place, any challenge by an employee (who, for example, was fired for failing to “come in” to work as required by the company) that may be allowed by alleging violation of general law requiring a “safe place to work,” are probably going to be “fact specific” as to whether the particular employer involved was in fact taking precautions to deal with the virus threat. In this sense, finding whether or not the employer provided a “safe place” to work may implicate factors such as the “reasonableness of the employer’s decision.”

For example, if an employer has an office that reasonably assures general “social distancing,” it may be found to have been more reasonable to require employees to come in to work. Similarly, it may be found to be unreasonable not to allow employees to stay home when their work does NOT have to be done in a central office. Then too, an employer who is requiring everyone to come in to work better have made sure they have taken extra precautions with respect to any questionable routine close-quarter work practices, cleaning services, etc., in keeping with the recommendations of the scientific community and federal and state guidelines—like “social distancing.”

The point is, however, that there is no black and white standard that would make such a rule “to continue coming into work” ipso facto illegal, unless of course an order of the Governor or SOME OTHER LAWFUL AUTHORITY requires it. In that case, while there are many issues not covered here, as to lawful or constitutional scope of any such order or directive, the “reasonable” employer would be well informed to heed such order or directive.

Then too, other existing laws may be relevant, for example, COVID-19, will probably be found to be a “disability” under state and federal law when actually decided (See Benjamin R. v. Orkin Exterminating Co., 182 W. Va. 615, 390 S.E.2d 814 (1990), where Justice McHugh based the decision of the Court on the important “major life function of socialization”), which means that it would almost certainly be illegal NOT to accommodate any employee who the employer knew was or reasonably believed to be “in quarantine” because of COVID-19, or because they actually had it, by allowing them NOT to come to work for a reasonable time, and probably until a doctor can certify they were no longer a threat, etc. Remember, too, that mandatory paid sick-leave is being legislatively enacted at the present time, which will affect this question (see last paragraph).

So whatever the work rules your place of employment makes, employers can’t discriminate against people who have or are believed to have the virus AND MUST accommodate their condition. Also, age discrimination statutes would probably disallow any differing mandatory treatment of older, more vulnerable, employees that would actually cause them economic harm, although an employer allowing older employees as a group the option of voluntarily working from home without loss of pay is probably o.k., as it causes no harm to the older worker, and can be a reasonable factor in assuring those older workers have a safe place to work.

Finally, you may have heard that Congress has just passed a new law beefing up financing for states to pay unemployment benefits for employees laid off during the crisis, and which will require a certain amount of “paid” leave by companies employing under 500 employees for people in quarantine or suffering from the virus, OR for required child-care of an employee either suffering from the virus or caring for another family member, etc. These are all new regulations, as yet to be implemented, and any business should rely on their own lawyer or HR department to determine as to how and when to start to implementation.

Check back next week for Part 2 of Reflections on the Law during the COVID-19 Pandemic, by Patrick Cassidy.

A Labor of Love: The Reuther-Wheeling Labor History Archive

“There is no greater calling than to serve your fellow men. There is no greater contribution than to help the weak. There is no greater satisfaction than to have done it well.” –Walter P. Reuther

The Reuther-Wheeling Library was founded as a research and study center on the life, times, and thought of Wheeling, West Virginia native Walter Reuther. An important part of the library’s mission is to promote the literary works of local authors about the heritage, history, and culture of the city of Wheeling. The library also contains numerous titles related to economics, politics, labor history, social justice, human rights, education, and the environment. The library is maintained by the Wheeling Academy of Law & Science (WALS) Foundation and is located, fittingly, in the “State Cellar” of the First State Capitol Building, where West Virginia’s first governor, Arthur I. Boreman had his offices and where West Virginia’s ratification of the 13th Amendment to the U.S. Constitution, abolishing slavery, as well as the 14th and 15th amendments, occurred.

The Reuther-Wheeling Library contains several volumes on the life of Walter Reuther.

The Reuther-Wheeling Labor History Archive was added in May, 2017, and is dedicated to collecting, maintaining, preserving, digitizing, and making accessible to educators and researchers, photographs, documents, books, ephemera, media, and other artifacts related to the life and work of Wheeling’s native son, labor leader and human rights activist, Walter Reuther, and the Reuther family, as well as such material related to the history of organized labor, unions, and the working class in Wheeling and the Upper Ohio Valley region.

But why does Wheeling deserve to be the home of a labor history archive? And why Walter Reuther?
Read more

Podcast: Jobs First Agenda Discussion of a New Energy Economy

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Transitioning to the New Energy Economy

On Thursday, October 5, 2017, the Wheeling Academy of Law and Science (WALS) Foundation invited all members of the community to participate in the discussion program, “Transitioning to the New Energy Economy.”

Forty people gathered at the First State Capitol to hear a program focused on the growth of jobs and opportunity in energy efficiency and renewable energy for our region and our coal mining communities.  A panel of experts in the New Energy Economy provided an overview of where we are now, and where we are headed, followed by an audience and panel discussion session.

Our panelists included:

Dan Conant, founder of Solar Holler. He has an MS in Energy Policy from Johns Hopkins and is a former advisor to the US Department of Energy’s SunShot Initiative. Dan partners with Coalfield Development, to provide WV coal workers access to education and work opportunities, and Rewire Appalachia enterprise, specializing in renewable energy training and jobs.

Evan Hansen founder and president of Downstream Strategies. Downstream Strategies offers consulting services to help build resilient communities, promote economic development, and protect the environment. Hansen received a B.S. in Computer Science and Engineering from M.I.T. and an M.S. in Energy and Resources from U.C.- Berkeley.

James Van Nostrand, Professor and Director of the Center for Energy and Sustainable Development at WVU College of Law. He received his LL.M. in Environmental Law from Pace Law School, his J.D. from the University of Iowa College of Law, his master’s degree in economics from SUNY at Albany, and a B.S. in economics from the University of Northern Iowa.

Sean O’Leary, Senior Policy Analyst with the West Virginia Center on Budget and Policy. He has authored numerous reports on working family issues, economic development, and state and federal budget and tax policy. Sean holds a B.A. in political science and economics and a Master of Public Administration from West Virginia University.

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Feature image courtesy Rosemary Ketchum


What is a Jobs First Agenda? Exploring a New Narrative and the Legal Framework to Effectuate It

What follows is a transcription of the Jobs First Agenda program presented on September 7, 2017 by WALS President Patrick Cassidy.
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Click here to listen to a podcast of the same program.

“My dad was a hard working coal miner as a young man, and a hard working steel worker for most of his life, and I’m sorry, but I will never believe what I heard from the titans of industry in my early years of practicing law, as to who was responsible for the loss of the steel industry, was my father.” -Pat Cassidy

Thank you all for coming tonight.

I know this is not great timing. Seven o’clock on a Thursday evening. But I appreciate your response. This is really the kickoff of a discussion series but I’m a little sorry to say that my presentation tonight will largely be in a lecture format, because I don’t know how to introduce this idea of the jobs first agenda without doing it this way. And those of you who know me know that my other career choice, up that road I did not go down, was a desire to be a philosophy professor. And so I still feel I’m somewhat of a frustrated old philosopher at heart. And I’m not going to read to you. But I do have to follow my notes closely because, unlike some other people you might see on TV who are able to speak without teleprompters, I don’t want to get into that kind of trouble. And so I have to refer to my notes from time to time.

But I do want to leave a little time at the end for some questions comments and I promise, along with our executive director Sean Duffy, that the rest of the series will not be in a lecture format, it will be more of a discussion group with the panelists. One of the moderators representing WALS will introduce the panelists and briefly pose some questions and then we’ll ask the panelists and you know we want input from the community. And we hope you’ll stay with us throughout the series or at least attend as many as you can because we want and need your feedback.

The jobs first agenda is an experimental idea we have been studying at our foundation for a number of years and are still studying. We want to know if it can work. If it can help solve or lessen the myriad problems and maybe even some crises facing our community and our nation today. And I don’t expect everyone to agree with what we are calling a Jobs First Agenda. That’s OK too. But we want to hear from you as we go along in this series, especially if you think our ideas are based on observed and experienced facts and not just opinions. So you may have some alternatives to our ideas that might be either incorporated in the agenda or even cause us to scrap it in favor of your ideas. And we want our discussions to be engaged in in a civil manner, which I know all of you people will do. And we do want to set one standard, and that is, I will quote Daniel Patrick Moynihan, our late great senator from New York, who said that, and you’ve heard this, I’m sure, before: “everyone is entitled to their own opinion but not their own facts.” So we hope to have a discussion based on facts, not political reasons, not political ideology, either from the left or the right, because we want this to be a non-partisan thing. We think that we can incorporate the best ideas from the left and from the right, and still come up with a workable solution — really a revolutionary solution–revolutionary, but a quiet revolution, one without guns, one without discord necessarily pitting people against each other. In any event the ideas underpinning our jobs first agenda have been plucked and borrowed from many sources: people — historical personages, institutions. Read more

Top Ten Features of A Jobs First Agenda

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Introducing WALS Commentaries Online

Welcome to the new online version of WALS Commentaries, published by the WALS Foundation.

The Wheeling Academy of Law and Science Foundation (WALS Foundation) is a non-profit community organization established in 2004 to promote educational programming and consulting in the areas of labor, local history and preservation, and equitable energy choices; and, in doing so, to promote local economic opportunity, employment, and job creation in the city of Wheeling and state of West Virginia.

Please visit our primary web site and our Facebook page.

The new WALS Commentaries is a web log produced by the WALS Foundation in the tradition of the printed newsletter published from 2006-2012. It will feature articles and stories that support the mission of the WALS Foundation. Our first post is coming soon. Please bookmark this page and check back regularly.