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VERIFY: Can you be fired for refusing to return to work once your state reopens?

Amid the debate surrounding states opening back up for business, many have raised an interesting question. Can you refuse to return?

WASHINGTON — Question: 

Can you be fired for refusing to return to work? 

Answer: 

Yes and no. It is within the rights of an employee to demand safety at work. If the employer does not take adequate steps to ensure safety, then an employee can stay at home. However, if the employer initiates safety measures, the employee may be required to return, or risk being fired. 

Source:

Mark Pearce: Executive Director for The Worker's Rights Institute at the Georgetown Law School; Former Chairman of the National Labor Relations Board

Scott Oswald: The Employment Law Group

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Process:

As states across the country begin to open up their economies, it raises an interesting question for employees: "What if I don't feel safe?" 

The Verify team wanted to find out if an employee could be terminated if they refuse to return to work, amid concerns about safety. Quickly, it became clear that this would be a complicated subject. 

"The bottom line is yes and no," Mark Pearce, the Executive Director for the Workers Rights Institute at Georgetown Law School, said. 

Scott Oswald, an employment lawyer in D.C., offered a similar analysis.

"There’s a lot of gray area for both sides," he said. 

Both employment experts offered some general rules to provide context on this question. 

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Employment At-Will:

This legal term is incredibly important in answering this question, as well as countless other employment issues. Employment at-will applies to nearly every state, and the District of Columbia, with the exception of Montana. 

In an "Employment-at-Will" jurisdiction, an employee can be fired for "any reason or no reason at all," so long as the action is not discriminatory. 

"I would often say to my clients, you can't get fired for the color of your skin," Pearce said. "But you can get fired for the color of your shirt."

This would suggest that an employee can be fired for refusing to return to work, so long as it's as a result of a consistent policy, that is not discriminatory. 

But it's not that simple. 

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Worker Safety:

Both experts agreed that workers have the right to demand a safe workplace. And employers must take "reasonable" action, to follow safety guidelines from the CDC and OSHA. 

Pearce directed the Verify team to Section 502 of the National Labor Relations Act, which offers protections for workers. 

"Employees can refuse work in an extremely unsafe working condition," he said. 

With this defense, workers can ask questions about what steps are being taken to ensure safety. For example, an employee can ask about PPE, and whether social distancing practices would be followed upon a return.

"If an employer is unwilling to assure the employee that it’s following the guidelines, then the employee is well in her right to say ‘No. I’m not coming back,'" Oswald said. 

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Laundry List of Caveats:

In answering this complicated question, the employment experts provided a number of helpful caveats:

  1. If you’re in a collective bargaining agreement, then your union may offer more protections and leverage in getting safer conditions.
  2. If you have a condition that puts you at a higher risk, your employer may be required to offer "reasonable accommodations" to avoid violating the Americans With Disabilities Act.
  3. If you’re a first responder, the bar for staying home gets really high.

"It might be an unsafe situation," Pearce said. "But if there’s a duty to care for patients, that might override those kinds of considerations."

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Takeaway:

Generally speaking, you can be fired for refusing to work. But you’re also allowed to demand safety. And in this legal gray area, our experts predicted that we are likely to see many employment disputes in our future.

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