What can employees do when job duties include risk of exposure to the corona virus?
A few weeks ago, the global economy rolled forward under its own immense inertia. While concerns of an economic downturn were growing, few suspected the preceding years of expansion would end overnight . . . yet here we are. It wasn’t the business cycle; it wasn’t an overheated housing market; it wasn’t irresponsible financial products. The behemoth was struck down where it stood because workers stopped working. Over the last five weeks, over 26 million people in the United States filed for unemployment assistance. In addition to those who lost their jobs, many employees were sent home to work or are temporarily laid off. What sort of protection do these employees have when restrictions are lifted and companies call them back to the workplace?
Lawmakers are debating when and how to reopen the larger economy—some arguing for a rapid reopening designed to minimize the length of time commerce remains stagnant, while others plea for a cautious reopening focused on minimizing infection rates. Although much depends on the way government loosens the current restrictions, tension between employee safety and the desire to resume normal operations is certain to grow.
Employees may feel powerless when their employers ask them to return to work. Can an employer fire employees who are reluctant to perform certain tasks? Should an employee that suffers from a medical condition that increases the danger of the virus be forced to return upon the employer’s demand? What if a worker has been exposed to the virus during the shutdown? Can employees be required to test in order to return to work?
Each of the questions above have complex answers. Various federal and state level employment regulations require employers to provide a reasonably safe work environment. As such, employees are protected from the most egregious demands by employers. A restaurant delivery service might run afoul of such laws if it required an employee to make a delivery inside an active COVID-19 treatment facility. However, if the company told the same worker to drop the food off outside the building without direct interaction with anyone inside, the worker’s refusal could justify a lawful termination.
If an employer can provide a reasonably safe environment, refusing to return to the workplace could get the employee fired. Of course, agreeing upon what is “reasonably safe” can be difficult, particularly when many employees are desperate to bring home a paycheck. Although some workers will be able to continue working remotely, those who cannot may find themselves in a terrible predicament.
Individuals with preexisting medical conditions that make them particularly susceptible to infectious disease will generally be protected under the Americans with Disabilities Act (ADA), and similar state laws. To qualify for protection, the employee must have a disability. Disability is defined under the ADA as (1) having a physical or mental impairment that substantially limits one or more major life activities; (2) having a history of such an impairment; or (2) being perceived by others as having such an impairment. Under the ADA, a company is required to make a reasonable accommodation to a disabled worker. A reasonable accommodation typically includes modification to or assistance in performing existing job duties in a safe and practical manner.
Proving a disability in a legal proceeding requires medical examinations and a thorough review of the subject’s medical history. This is, of course, impractical outside of litigation. However, when asked to perform an unreasonably dangerous task, sometimes merely requesting a reasonable accommodation under the ADA may be sufficient to compel the employer to appropriate action. Unfortunately, there will be instances where employers will use the threat of termination to force employees to perform unreasonably dangerous tasks. When there is money to be made, there will be those who will value profit over the individual welfare of employees.
If your job duties put you at unreasonable risk of infection, you have a condition that makes you particularly susceptible to infection, or you have been terminated, demoted, or had an adverse employment determination because of your refusal to perform a task because of the corona virus, the experienced attorneys at Neumann Law Group are ready to evaluate your claim. Contact one of our offices for a free consultation.
Benjamin W. Bryant, JD
Neumann Law Group
