Covid-19 and employees who walk off the job.


In these turbulent times, employers, especially fast-casual dining companies, are facing a slew of not only economic hardships, but the troubling task of replacing workers who leave their post based on purported "unsafe and unhealthy" working conditions. Recently, this office has been inundated with calls on the employer side seeking answers about whether employees who refuse to work must be allowed to return to work when the pandemic subsides, or whenever they feel it is safe to do so. The answer is not so clear.

Caution must be implemented when making the decision to replace an employee who refuses to work because of concerns about COVID-19. Here are some issues to consider:

  • Pursuant to Occupational Safety and Health Administration (OSHA) rules, an employee’s refusal to perform a task can be a protected decision if all of the following is met: Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so; the employee refused to work in “good faith,” which means that the employee must genuinely believe that an imminent danger exists; a reasonable person would agree that there is a real danger of death or serious injury; and there isn’t enough time, because of the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

  • Recalled employees may have a right to job-protected leave under California law, a local ordinance, or the federal Families First Coronavirus Response Act (FFCRA).

  • Certain employees who are in a high-risk category — either due to an underlying condition or other health concern — may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or California law if their situation doesn’t qualify them for leave under the FFCRA (or if they have run out of that leave). An employer might be considered to have acted unreasonably in failing to accommodate such an employee under the circumstances to allow the employee to work from home or, if working from home is not possible, to take an unpaid leave. If the job is unable to be performed at home (like fast food) then this protection is moot.

A good lawyer, or astute employee acting on his or her own, may also be able to cite to a few other California and local city laws for additional protections. So what should an employer do?

Rather than replacing employees who claim a fear about contracting the Corona virus or other illness, it is likely better to consider methods of encouragement and emphasize the company plan considers employee safety paramount. It would be proper to emphasize safety measurements such as social distancing requirements for all employees who deal with the public, the availability of face coverings and gloves, consistent hand washing, and ample personal protective equipment, staggered shifts, or more extreme measures if warranted by your industry). Hazard pay, or additional financial bonuses (especially if your business obtained a Payroll Protection loan), may also quell the need to hire and train employees during this pandemic.

if your business has questions about how to interact with employees during this time please feel free to reach out to Eberhardt Law Group at 714-551-9996 for a free consultation.

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