Can My Employer Force Me To Work During 'Shelter-in-Place'?

As states enacted “shelter-in-place” or “stay-home” orders to combat the COVID-19 pandemic, many workers faced a difficult question: Could their employers force them to work when the government told them to stay home?

Unfortunately, the answer wasn’t an easy one. At a glance: “It depends,” says John C. Cook, an employment law attorney in Fairfax, Virginia.

Wrongful Termination for Not Showing Up to Work During a Public Health Crisis

In Virginia, employees who are fired for not showing up to work during a “stay home” order may have a wrongful termination claim—specifically, a “Bowman claim,” named after the Supreme Court of Virginia case Bowman v. State Bank of Keysville.

“What that case says is that, essentially, you cannot be fired for engaging in certain statutorily protected rights,” Cook says. “In that particular case, it was the statutory right as a shareholder in the business to vote your shares without duress. But I think [it can be interpreted as] you can’t be required to break the law. And so we’re kicking around the idea here that if your employer is telling you that you must violate the governor’s stay-at-home order, and you’re fired for that, that might be a Bowman claim.”

However, there are some significant challenges with this argument. Attorneys will need to determine what parts of the order are law and what parts are just guidance. For example, while the order does suggest people with any symptoms of any illness should stay home, “I don’t think the order says ‘If you get up and cough in the morning or have the sniffles, by law you’re prohibited from going to work to prevent the spread of COVID-19,’” Cook says.

Another challenge has to do with the exceptions to the working conditions, such as workers who are employed in industries that are deemed “essential” and, as such, are not subject to the restrictions.

How Do You Determine What’s an Essential Business?

Some businesses have workplace hazards, as discussed by the Occupational Safety and Health Administration (OSHA), such as medical providers, first responders, and construction, while grocery stores are clearly identified as essential. But what about those that aren’t so clearly defined or businesses that aren’t essential but are still allowed to open? That’s another challenge since the governor’s executive order is “somewhat vague,” Cook says.

If an employee is told to work in a store that is allowed to open and raises concerns that the store has more than 10 customers inside or that people coming up to the cashier aren’t practicing social distancing and is told to work anyway, “I think that is potentially actionable,” Cook says.

One of the biggest problems with these sorts of issues, though, is simply timing. A Bowman claim can’t be made until after an employee is terminated from their job. “So it doesn’t help you too much before you’re fired,” Cook says.

Medical Leave Options

Before a conflict between an employee and employer becomes a termination, employees can leverage their leave of absence and sick time rights. The Family and Medical Leave Act (FMLA) stipulates that employers with 50 or more employees must provide “90 days of unpaid leave to take care of yourself or a family member, for any medical reason,” Cook says. “It doesn’t have to be COVID-19.”

For midsize and small businesses, the Families First Coronavirus Response Act, which was in effect from April 1, 2020, through December 31, 2020, required certain employers to provide up to 80 hours of paid sick leave for coronavirus-related concerns. However, determining what qualifies for the sick leave policies could be complicated.

“What if you have a head cold and you’re not going to the doctor because you don’t need to and, quite frankly, you’re afraid to walk into the doctor’s office?” Cook says. “You’re reading the Centers for Disease Control and Prevention (CDC) guidelines, and you’re saying, ‘I should not go to work.’ Are you entitled to paid sick leave? Can you claim that the head cold is related to symptoms of COVID-19 because your decision to stay home is related to the health conditions? … I think you could make the argument that it’s related and there is a risk of exposure by close contact. But that is not 100 percent clear.”

Another possible protection comes from the Americans with Disabilities Act, a federal law that requires employers to provide reasonable accommodations to individuals with disabilities. “Extended leave and telework can be reasonable accommodations under the ADA that an employer has to give,” Cook explains. “However, you only have to give those accommodations if the employee is a qualified person with a disability.”

Even workers who are at high risk of COVID-19-related illness, such as those with asthma or a compromised immune system, may not qualify for ADA protections. “Because your everyday life separate from COVID-19 is not affected enough,” Cook says. “And if that’s the case, then you’re not entitled to an accommodation because, even though in this specific circumstance of a public health emergency you need an accommodation, you don’t get in the door in the first place because you don’t qualify.”

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If you have employment questions related to your health care, time off benefits, or concerns over unfair employment decisions, contact an experienced employment law attorney.