Compelling Employees to Appear for Work During a Pandemic

Employers are faced with unique challenges with the appearance of COVID-19. While many employers are transitioning their workforce to remote platforms, many essential businesses (such as grocery stores, laundromats, and hotels) are unable to function via telework and require employee attendance at the worksite.

A significant number of essential businesses are now tasked with the challenge of compelling employee attendance in light of a generalized fear of contracting COVID-19. Worse yet, what are an employer’s remedies if it suspects that an employee is using COVID-19 as a pretext for not showing up to work? May an employer insist, or even terminate, an employee if the employee refuses to appear for work? There are affirmative steps an employer should take to minimize the risk of a wrongful termination claim based on mishandling an employee refusing to appear for work.

Termination Based on Protected Characteristics, Actions, or Public Policy

In California, employment relationships are generally at-will, meaning absent a written or oral contract providing the conditions under which an employee may be terminated, an employee may be terminated at any time and for any reason not contrary to law. Unlawful termination includes termination:

• Because the employee engaged in a protected activity (e.g., disclosing or refusing to disclose wages, political activity, jury duty);

• Resulting from discrimination based on a protected characteristic (e.g., disability, race, religion); and

• That violates anti-retaliation laws (e.g., termination for whistleblowing or refusing to violate the law).

Termination for any of these reasons (or other reasons that implicate strong public policy) may be considered wrongful termination under California law.

Currently, there is nothing in the law that expressly prohibits an employee’s termination based on failure to appear due to a generalized fear of contracting COVID-19, but in some cases, such termination may be impermissible. For example, if an employee has a diagnosed disability, such as Obsessive-Compulsive Disorder, an employer may be required to offer that employee a reasonable accommodation for such disability. Importantly, it is not simply the fear of COVID-19 that triggers employee protections; employees with other underlying health conditions may also have a legitimate basis for seeking an accommodation during the COVID-19 pandemic. And because COVID-19 is considered more infectious and deadlier than the average flu, whether such an employee requested the same accommodation during the yearly flu season is irrelevant.

Under the recently enacted Families First Coronavirus Response Act (FFCRA), there are several COVID-19 related reasons an employer must permit leave. For our most recent information on FFCRA, please read here. For example, where an employee is unable to work (or telework) due to government entity’s isolation order, an employer must grant paid sick leave.

Thus, absent these unique circumstances, it is unlikely an employer’s termination of an employee for a refusal to appear for work would be an actionable wrongful termination.

Workplace Safety

The provisions of the Occupational Safety and Health Act (OSHA) address general safety in the workplace. Section 13(a) addresses situations where employees may refuse to work. Employees must be in “imminent danger” for such refusal; that is, a danger must exist that could reasonably be expected to cause death or serious physical harm immediately or imminently before the Department of Occupational Safety and Health can act to protect employees.

This is a fact-based inquiry. Those most at risk of death or serious physical harm as the result of COVID-19 are individuals over the age of 60 and those with underlying health conditions, such as high blood pressure, cancer, and diabetes. Such employees are more likely to be considered in “imminent danger” of serious physical harm in the workplace. Employers should permit such employees a reasonable accommodation, such as the ability to work from home.

While everyone is a potential a carrier of COVID-19, OSHA does not provide a legal or public policy justification to permit employees to stay home from work because they may transmit the virus to others unless their presence could be considered an imminent danger to others.

Interfering with Employee Rights

Section 7 of the National Labor Relations Act (NLRA) was designed to permit employees to organize and collectively bargain to advance their interests as employees. Under this section, employees may engage in these activities for “mutual aid or protection.” Section 8 prevents employers from terminating or otherwise interfering with concerted employee activity.

An employee may not use the NLRA as a basis to stay home from work. Rather, these sections restrict employers from interfering with protected collective employee action. Whether COVID-19 is considered “unsafe” under Section 7 will likely be a fact-based inquiry, although it is unlikely that the general “mutual aid or protection” provision will be able to shoehorn more speculative risk levels (i.e., significantly lower than OSHA’s “imminent danger” threshold) into employer liability, especially if employers minimize the threat of infection at the workplace.

Advice to Employers

Independent of potential liability issues, employers should take steps to minimize transmission of the virus in the workplace and communicate such steps to employees in an Emergency Action Plan and/or Injury and Illness Prevention Program. This will reduce the risk of transmission at the workplace and potentially minimize a wrongful termination claim by an employee terminated for not reporting to work out of COVID-19 related fears.

As with any employment action that carries risk, the termination of any employee during this sensitive time in our history carries with it more risk than in normal times of business operation. Employers should stay in regular communication with employees who are refusing to report for work and appropriately document any unique facts which may place the employee in a protected status. Employers may have a well-founded concern that any such termination will potentially from the basis for a retaliation claim, but as in normal times, employers cannot function without employees who reliably report to work, and a consistent pattern of refusal to report to work certainly will form a legitimate basis for termination of employment, given these considerations.

If an employer terminates an employee for refusing to appear at work, the employer should follow all proper steps, including appropriate documentation for the employee’s personnel file, the timely payment of final wages, and perhaps offering severance in exchange for a waiver. The bottom line is that employers, as always, need to make good decisions as to their workforce which balance the potential risks against the needs of their business operations. While every employee may have a fear of becoming infected, not every one of those employee fears is protected by law. Just as employers must make termination decisions, healthy employees must decide if they are willing to take appropriate risks, in safe workplaces, to report to work.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.