Can my employer fire me if I don’t return to the office?
Generally speaking, an employer can fire you if you refuse to come back to work. Most workers in the United States are employed “at will,” meaning that an employer can fire them for any reason that is not illegal. Being nervous about the coronavirus likely won’t be enough to legally protect you if you refuse to come back to work, unless you have legal justification or employer authorization. Several federal laws may provide workers with that legal justification (see below).
The Occupational Safety and Health Act (OSHA)
OSHA grants workers the right to refuse to work if they believe workplace conditions could cause them serious imminent harm. Employers must comply with the OSH Act’s General Duty Clause, which 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.” This is a very high standard, and may be hard to meet if the employer is practicing social distancing and proper hygiene guidelines at the workplace. If you think your workplace is unsafe because of the coronavirus, and you have concrete, specific examples, you can file a complaint with the OSHA. Complaints can be filed online (click HERE). OSHA also includes an anti-retaliation clause, meaning you can’t be fired or demoted for asserting your right to a safe workplace — though you must file that claim within 30 days of the retaliatory act. Contact us if you feel you were fired because of an OSHA complaint you filed.
The National Labor Relations Act (NLRA)
If you and another worker feel your workplace is unsafe, and you work together to make a complaint about it, or band together in a refusal to return to an unsafe workplace, you may be protected under the NLRA. The NLRA prohibits employers from retaliating against workers who are engaging in “concerted activities” like these. This law generally applies to all private sector employees regardless of whether they’re in a union. But some employees, including agricultural workers and domestic workers, are exempt. NLRA charges must be filed within 180 days of the retaliatory act. Contact us if you feel you were fired because you engaged in concerted activities with a coworker.
What if I’m at higher risk of contracting COVID-19?
Individuals at greater risk from the coronavirus can still be required to return to work, but most employers do have an obligation to accommodate those with diabilities. The Americans with Disabilities Act (ADA) requires employers to engage in an “interactive process” to try and provide reasonable accommodations for all employees with a disability who request one. The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” The Family and Medical Leave Act — which the FFCRA expanded — also states 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.
While the ADA does not specifically list all impairments that qualify as a disability, many of the conditions that put an individual at a higher risk of contracting COVD-19, including diabetes, heart disease, lung disease, and immunodeficiency, ”are almost always ‘disabilities’ under the law.
In order to claim protection under the ADA, you should provide your employer with documentation of your condition along with your ADA accommodation request. The ADA also has anti-retaliation provisions that prevent your employer from taking action against you if you ask for accommodations under the law.
The ADA can’t be used to stay home from work entirely, but it may afford you certain protections, such as accommodations to work schedules, work locations, or protective equipment at the workplace.
Can my boss cut my hours or pay due to coronavirus concerns?
The short answer is yes. Unless you have a union contract, or an employment contract that guarantees a particular number of hours or a minimum level of salary (this is rare), an employer is free to cut hours or pay rates. So long as they are doing so for legal reasons (for example, to save money) and not an illegal reason (e.g., to retaliate against you for making a protected complaint), they are free to offer whatever hours and pay they like. You do not have to accept that offer, of course. If you do not like the new hours or pay being offered, you are free to quit and search for a different job.
Can my boss check employees’ temperatures? Or make me report potential COVID-19 symptoms?
Once again, the short answer is yes. The Equal Employment Opportunity Commission (EEOC), which enforces workplace anti-discrimination laws, has said employers can test employees before allowing them back into the workplace, as long as the Food and Drug Administration determines the tests being used are “accurate and reliable.” It has also said employers can take the temperatures of their employees, but must keep their health information confidential. Employers must conduct temperature screenings in a way that’s safe and respectful for employees, but they are allowed to do it.
If I feel my workplace is unsafe, can I quit and collect unemployment benefits?
It depends. The federal CARES Act expanded unemployment benefits to people who might not have qualified in the past, such as gig workers (like Uber drivers) and people who are part-time employees or self-employed. It also granted Americans an additional 13 weeks of unemployment benefits and mandated that people on unemployment receive an additional $600 a week. (However, that extra money will end after July 31.)
Generally speaking, however, you can’t get unemployment if you quit. The only exception is if you have “good cause” for doing so. An unsafe working condition may be a potential basis for claiming “good cause,” but it is a fact-specific inquiry. Ultimately, it will be up to your randomly-assigned TWC caseworker to decide if you have met that standard. They may consider the conditions under which you quit, whether you had raised your concerns with your employer, and whether the employer did anything to address your concerns.
If you think your workplace is unsafe, you should first advocate your position to your employer, documenting your request and their response. But there is no guarantee of qualifying for unemployment. Even if you can show they you good cause, there will likely be a delay in getting your benefits while that issue is determined.
Additional Resources can be found at:
- U.S. Department of Labor Employee Fact Sheet and Question and Answer Page
- Texas RioGrande Legal Aid Information Sheet in English y Información en Español
- Disability Rights Texas’ Information Page for people with disabilities impacted by COVID.
- Disability Discrimination and Reasonable Accommodations, by Brian East, Disability Rights Texas
- The ADA, Age Discrimination, And Worker Health During The COVID-19 Pandemic, by Laurie A. McCann, AARP Foundation Litigation