Can My Employer Force Me To Come Into Work During the Coronavirus Outbreak?

With the outbreak of the coronavirus pandemic, we are all in uncharted territory. New information and new restrictions are coming at us with overwhelming pace and gravity. Each passing day seems to present a new set of problems and new sources of anxiety about the coming weeks and months.

Many people are rightfully concerned about their jobs; some have already lost jobs. Those who have the ability to work from home appear to be doing so, by and large, with their employers’ blessings. However, many who are now working from home are understandably worried that, as the economy continues to grind to a standstill, their employers will not be able to sustain the necessary income to avoid layoffs.

Countless others simply cannot work from home, particularly those in the service industry. To make matters worse for them, many service industry sectors (restaurants, music venues, etc.) are screeching to a halt, given the necessary public health mandates and restrictions that have been put in place. There will inevitably be significant closures, both temporary and permanent.

Given the uncertainty and instability that we are currently faced with, there are things that every employee should know about their rights and their employers’ obligations. Here are some legal issues that may come into play if you lose your job or have your hours reduced, either temporarily or permanently.

Unemployment Benefits:

For the majority of laid off or terminated employees, applying for unemployment benefits may be the only option. If you have lost your job or had your hours significantly reduced, you can apply to the Massachusetts Department of Unemployment Assistance (DUA) to receive a portion of your wages. This can be done online here.[1] Governor Baker stated on March 17, 2020 that he is asking the State Legislature to suspend the current statutory one-week waiting period between losing your job and applying for benefits. Until and unless that happens, however, the law requires that you wait a week before applying. Before you apply, you should determine if you are eligible for unemployment, which is based on the duration of your employment and the amount of money you have earned. The state provides this helpful benefits calculator [2] for you to determine your eligibility and benefits. You can also consult with an attorney specializing in unemployment.

Wrongful Termination:

The default in Massachusetts law (and in most states) is “at-will” employment. This means that an employer can legally terminate you or lay you off for any reason, or for no reason at all, as long as the reason is not illegal. For example, if you lose your job solely because your employer believes they can no longer afford to pay you, that would not constitute wrongful termination in most scenarios. In that case, your best bet would likely be applying for state unemployment benefits.

However, there are legal claims which could apply to circumstances that are likely to arise during the coming days, weeks, and months. If you believe one or more of the claims described below apply to you – even for at-will employees — you should seek legal guidance to determine whether you have a viable claim of wrongful termination or retaliation:

OSHA: If you reasonably believe in good faith that performing your job places you in imminent danger of serious injury or death, and you informed your employer, and the employer did not correct the dangerous condition, you may have the right to refuse to work under the federal Occupational Safety and Health Act (OSHA). If your employer retaliates against you for such a refusal (by terminating you, for example), you may have an OSHA claim. You should seek legal counsel as swiftly as possible because OSHA has extremely short statutes of limitation. For more information, consult the U.S. Department of Labor’s website here.[3]

Disability Discrimination: Mass. General Laws c. 151B is the predominant Massachusetts anti-discrimination statute. Employers are forbidden from taking adverse action against employees on the basis of membership in a number of protected categories including one’s race, religion, age, gender, sexual orientation, and, most important for the purposes of this post, medical condition and handicap/disability. Along with the federal Americans with Disabilities Act of 1990 (ADA), chapter 151B protects workers from losing their jobs based on a medical condition or handicap. For instance, if you refuse to attend a meeting or conference, or to travel on a plane, because you have legitimate anxiety about contracting or spreading COVID-19, your employer may be obligated to work with you to determine if there is another solution, such as a conference call, Zoom, or Skype. If your employer is unwilling to work with you, and instead disciplines, demotes, or terminates you, you should seek legal counsel to determine if you have been treated wrongfully and illegally.

Public Policy

: An exception to at-will employment is called the “public policy exception.” Put simply, an employer may not fire an employee if the termination would violate an established policy of the Commonwealth. For example, if Massachusetts or your municipality orders citizens to stay at home except to meet basic needs such as medical care and grocery shopping (like San Francisco has done this week), your employer cannot terminate you for complying with the order. If you feel that you may have been terminated in violation of public policy, you should contact an attorney.

Employment Contracts: Another exception to at-will employment is an employment contract. If you are a party to an employment contract, your employer may be obligated to pay you for the duration of its term, depending on the structure of the contract. However, a great number of contracts contain a force majeure clause; that means unforeseeable circumstances that prevent someone from fulfilling contractual obligations. Not every one of these clauses is the same, however. If your employer attempts to withhold your compensation by asserting such a clause, you should seek legal counsel to review the contract in question and advise you of your potential rights.

What are my rights if I have contracted Coronavirus, at work or otherwise, if I am under doctor’s orders, or if I am close to someone who has contracted Coronavirus?

Worker’s Compensation: If you believe you have contracted the coronavirus at work and have been forced to miss time as a result, you may be entitled to worker’s compensation benefits. Generally, infectious diseases may only be covered “if the nature of the employment is such that the hazard of contracting such diseases is inherent in the employment.” It remains to be seen how this requirement will be applied to a worldwide pandemic. Nonetheless, if you have missed worktime because you contracted COVID-19 while at work, you should seek legal counsel to determine your rights.

Negligence: Outside of the workplace, if you have reason to believe that you were infected, or someone close to you was infected, with COVID-19, you may have legal recourse against the entity responsible for maintaining safe, clean, and sanitary premises. For instance, lawsuits have been recently filed against the Princess Cruise Lines by people who were passengers on the Grand Princess cruise ship. The lawsuits allege Princess Cruise Lines acted negligently and “chose to place profits over the safety of its passengers, crew and the general public.” Similar lawsuits may follow against other entities that unreasonably exposed its patrons or customers to infection. If you believe that you or someone close to you may have a claim, you should seek legal counsel to evaluate the facts and circumstances of your case.

Doctor’s Orders: If you are placed on quarantine by a doctor, and therefore cannot work, and it turns out you test negative for COVID-19, your employer cannot take adverse employment action against you. In other words, your job is protected because your inability to work was due to a medical order.

Associational Disability: Employers cannot discriminate against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on concerns about the known disability of a family member or anyone else with whom the employee has a relationship or association. For example, if you request to time off to care for a sick family member, your employer is prohibited from terminating you for that reason, particularly if other employees are granted similar time off for other reasons. You can also consider applying for FMLA time, presuming you qualify.[4]

If, on the other hand, your employer orders you to stay home because you have been exposed to the coronavirus by caring for a sick family member, it is unlikely that you would have a claim in that circumstance, particularly because it is becoming apparent that COVID-19 can be spread by asymptomatic individuals.

Massachusetts WorkShare Program

Finally, if you are aware that your employer is considering layoffs (or if you are an employer yourself), you may want to investigate the Massachusetts WorkShare program, by which employers can split available work among affected employees instead of laying off workers. In this program, employees can receive partial unemployment benefits while working reduced hours. It may be an ideal solution for some workplaces in the face of the difficult decisions which are coming. Massachusetts has detailed information about the program here.[5]

To summarize: These are unprecedented times. The full impact of the pandemic is impossible to predict. At a time like this, it is important for people to be mindful of their rights and the legal protections that may help them navigate through this. If you believe you have a legal claim, help is available. Please call us; we are working remotely, as our most of our colleagues, and we are ready to serve you.

Stay safe and be well. Follow the social distancing rules. We will get through this together.

Written by Matthew J. Fogelman and Adam J. Rooks

mjf@fogelmanlawfirm.com

ajr@fogelmanlawfirm.com

Fogelman & Fogelman LLC

189 Wells Avenue, Suite 302

Newton, MA 02459

Tel: (617) 559-0201 | Fax: (617) 505-1540

www.fogelmanlawfirm.com

With offices in Massachusetts and New York

[1] https://www.mass.gov/how-to/apply-for-unemployment-benefits

[2] https://www.mass.gov/info-details/how-your-unemployment-benefits-are-determined