Robbins: What if you’re afraid to go back to work?
Like a burgundy-black Dahlia, the world is opening back up.
Perhaps more aptly, the camel of normalcy has begun to poke its sand-pinched nose beneath the COVID-19 tent. But as we all come blinking back into the light of workdays and routines, what if you’re still kinda scared? What if — gulp — you default to the opinions of experts rather than those of the bloviating politicians?
What if you don’t really want to go back to work, at least not yet? What if you’re afraid that if you don’t heed your employer’s call, you might get canned?
Is there a legal “app” for that?
Laws protecting workers
First of all, each state has different protections and different laws. Kansas, California, Michigan and Missouri may as well be different worlds. Each of these distinctive state constructions, in their own ways, augment federal law.
It’s enough to set you into a fevered tizzy. It’s worth noting too that in consideration of these troubled times, many states — and even towns and cities — have expanded their usual worker protection laws. Things are in flux like, um … the sneezy COVID-19 flux itself. Some states have inacted orders flat-out prohibiting employers from firing employees for COVID-19-related reasons — however what may be construed as “COVID-19-related” may vary from one state to the next.
In some states — but not necessarily others — workers who refuse to return to work because of COVID-19 will be kept on unemployment. However, the devil is in the details of the particular state.
The mishmash of state and local laws notwithstanding, federal laws provide at least a bedrock upon which your COVID-19 terror dreams may lash.
What ‘at-will’ employment means
Speaking generally, most states — the Centennial State included — are “at will” employment states. Loosely, what this means is that, absent a written contract to the contrary, you can be let go for any reason or no reason so long as it’s not for the “wrong” reason. An employer can fire you because it doesn’t like the cut of your jib, or because you don’t mesh with the team, or because your work ethic is as flaccid as a couch potato. But your employer cannot cut you from the employnent teat because of your age, sex, sexual orientation, religion, ethnic origin, or membership in any other legally protected class.
Skittishness alone will likely not protect you. If you are a Nervous Nellie, unless you’re willing to lay your employment on the altar of your fears, you may just have to suck it up. Absent substantiable cause, unless with your employer’s authorization or consent, if you refuse to return to work, most likely you will be considered to have bought yourself a permanent, unpaid vacation. In short, what this means is that you will likely have to have a reasonable legal justification to not go back to work.
Some legal cover
The Occupation Health and Safety Act may afford some cover. Among its other provisions, the act grants workers the right to refuse to work if they reasonably believe workplace conditions could cause them serious, imminent harm. Specifically, OSHA’s general duty clause requires employers to guarantee their employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Most if not all states also have their own state OSHA-approved safety plans which may raise the safety bar that much higher.
As a caution, though, whether or not the OSHA general duty clause or its state corollary would apply has not yet been tested in the Petri dish of the COVID-19 pandemic. y my own lights anyway, I think a strong case may at the least be made by senior care facility workers and those toiling in the nation’s meatpacking plants.
The National Labor Relations Act may also provide safe harbor. Under the act, if you and one or more workers feel your workplace is unsafe and refuse to go to work, you may be protected as having gone on strike for health and safety reasons. As such, the employer would be barred from retaliation. This is, however, more complicated than it seems; while the employer cannot “fire” you, it can permanently replace you. Hmmm.
Here too, your reasons must be palpable, specific and at least colorably reasonable.
The recently-passed Families First Coronavirus Response Act, which was primarily intended to prop up the economy during the first blows of the pandemic, also includes some expanded worker protections. Under the current scheme, however, unless renewed or recast, these will last only through year’s end. These protections include paid time off if you are caring for yourself or someone who has been quarantined because of COVID-19.
Persons at greater risk from the coronavirus can still be required to return to work but under the Americans with Disabilities Act, their needs must be reasonably accommodated.
While there is much more to unwrap under this topic, you should know that if you quit your job because you simply “think” your workplace may be unsafe or you are too nervous to rev up your employment engine, you may not qualify for unemployment.
The bottom line here is that all of us — employers, employees, and gig workers alike — are very early on the upslope of this learning curve. And as trite as it may already seem, we are really all in this together.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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