Employers all over the country have been struggling for months now to salvage some semblance of operations during the coronavirus outbreak.  As employers have dipped their toes into in-person operations, the question we have been receiving time and again is, “What if one of my employees refuses to come to work?”

That question is typically followed by some combination of these statements:

• “I am following all CDC guidelines.”
• “My state/city is allowing me to open.”
• “I am sanitizing regularly.”
• “I drafted new policies regarding sick employees and reporting.”
• “The employee does not have a disability.”
• “The employee is just scared, there is nothing to worry about.”

We do not know exactly how this will all shake out, but what we do know is that employees (and the plaintiff’s bar) will be looking creatively to all sorts of laws in an effort to put pressure on and bring claims against employers forced to make tough decisions regarding employee requests to work remotely or refusals to report.

One statute that might not immediately come to mind when employers are making such decisions is the National Labor Relations Act (“NLRA”).  For a lot of employers, the NLRA is a cryptic statute that they vaguely recall has something to do with unions.  The current situation is a good reminder, however, that the NLRA was actually enacted to empower workers in situations like this.  Before the NLRA was enacted, it was much more common that workers suffered from unsafe working conditions.  A partial purpose of the NLRA was to provide workers the right to seek improvements in their working conditions and protection from retaliation if they did so.  These rights, of course, still exist.

The coronavirus outbreak has created legitimate safety concerns over working conditions (and in places where safety typically is not an issue, like an office).  Workers engage in “protected concerted activity” under the NLRA when they take action with or on behalf of other employees.  Workers engaging in protected concerted activity have statutory protections under the NLRA (regardless of whether they are unionized!), including protections from termination and other forms of retaliation such as demotion and diminution in wages or benefits.

Employers need to be especially careful when making employment decisions regarding employees refusing to report to work or making requests for alterations in their working conditions (this is separate and distinct from whether an ADA “reasonable accommodations” analysis might be required, too).  Talking through these issues with a trusted L&E attorney is definitely advisable during this tricky time.   If you would like more information or have a specific situation you would like to discuss, please give us a call.

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