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.