Can Your Employer Require You to Return to Work During the COVID-19 Pandemic?

Your individual circumstance will dictate whether you have a legal right to refuse to return to work because of the COVID-19 pandemic. There are some circumstances wherein you may have a legal right to refuse to work because of COVID-19. However, there are other circumstances wherein your refusal to work because of COVID-19 may not be legally protected.

Being afraid about the coronavirus likely is not enough to legally protect you if you refuse to come back to work. Unless you have legal justification (or employer authorization), refusing to work can constitute a resignation from employment.

Several California and federal laws may provide employees with that “legal justification”:

• OSHA and California’s Labor Laws: Despite the need for essential workers to report to work to ensure continuity of operations of essential functions, if the workplace is unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of OSHA and California’s labor laws, including Labor Code sections 6400 and 6402. If the workplace is not safe in violation of these laws, it may be unlawful for your employer to terminate your employment for refusing to work.
• The Families First Coronavirus Response Act (“FFCRA”): The Families First Coronavirus Response Act (FFCRA) includes some new and expanded worker protections that last through the end of 2020. If you work for a private employer with less than 500 employees, and have COVID-19, have COVID-19 symptoms or have been quarantined by a doctor or the government, you can take up to two weeks of paid sick leave at your regular pay rate. If you qualify for this paid leave, your employer cannot force you come into the office during that time. The FFCRA also provides up to two weeks of paid sick leave to employees unable to work because they are caring for someone who has been quarantined.
• Americans with Disabilities Act (“ADA”) and California Fair Employment and Housing Act (“FEHA”): Employees at greater risk from the coronavirus can still be required to return to work, but they have special protections. The ADA and FEHA require your employer to engage in an “interactive process” to provide reasonable accommodations for employees with a disability, which is defined as “a physical or mental impairment that substantially limits one or more major life activities.” Furthermore, the Family and Medical Leave Act and California Family Rights Act also provides that eligible employees can take up to 12 weeks of unpaid job-protected leave for a serious health condition that makes them unable to perform their job, of if they’re caring for a family member when a serious health condition.
• The National Labor Relations Act (“NLRA”): If you and another worker feel that your workplace is unsafe, and you both decide to not go into work for that reason, you may be protected under the NLRA. This decision can be categorized as going on strike for safety reasons.  You and the other worker would both be legally engaging in what’s referred to as “concerted activity”.  The NLRA prohibits employers from retaliating against you for exercising you “concerted activity” protections. Although your employer may hire someone else to permanently replace you, they cannot legally terminate your employment.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, or has terminated your employment for refusing to return to work, contact the labor and employment attorneys at Termechi Employment Law to learn more about your rights during a free consultation.  Our phone number is (310) 974-3324.