COVID-19: Are My Workers Essential In A Shut-Down Environment?
Posted March 24, 2020

With the state as well as local governments issuing a variety of shut-down orders, LightGabler has received numerous questions about which businesses are essential, whether all workers are essential, and what to do about essential and non-essential workers. We provide the following general guidance to assist with these questions:

Where do I find the relevant order(s)?

As a starting point, the state has compiled its own shut-down order as well as copies of the ongoing city and county orders on its own website here. Check this link for easy access to all relevant orders. Note that checking the individual county and city websites as well for the most up-to-date information in your areas of work is important, as there can be a short delay between local releases and the state's ability to update its site.

Which one do I follow?

The various orders conflict in a variety of respects, and it can be challenging to determine which order applies. In general, always follow the most restrictive order in place. That said, make sure you are always in compliance with the order most directly relevant to the location in which your employees are working.

Do my employees have to have a permit or license to keep working?

No specific documentation is required to prove the essential nature of an employee's work. Many jurisdictions are practicing "compassionate compliance," meaning that although they expect the full cooperation of the public in following all relevant orders, they are not out patrolling for violations and instead will address violations that come to their attention. That said, for employees who feel more comfortable carrying some kind of "permission slip" or employers who want to be sure they are able to demonstrate full compliance, documentation is certainly welcomed. LightGabler can provide a sample letter to clients who request this documentation.

Can I just keep working as long as no one is telling me to stop?

Employers are cautioned against ignoring the relevant orders and choosing to continue business operations until specifically ordered to stop. First, the government orders are indeed orders, and compliance is required. Second, the orders have been issued for the health and safety of the general public, and should be taken seriously. Third, employees themselves may report employers who violate the orders if they do not want to be mandated to work, or pursue claims against employers who attempt to force them to work when they should be isolated at home.

If my business is essential, does that mean I can keep everyone working?

Just because your business engages in essential operations does not mean you can continue all of your usual operations. A business with one division or work group performing essential work may continue to work, but another division or work group performing non-essential work must be sent home to isolate. Support staff may be mandated to work if they are directly supporting the essential functions and their role is critical to that function. However, support staff who are useful but not essential to an essential function must be sent home.

If my business is essential but my employee refuses to work, what can I do?

Businesses performing essential functions may require essential employees to continue working. That said, if an employee has another reason to leave work under the current crisis (such as illness, caring for a family member with illness, child care during school closures, being in a high-risk category and other protected characteristics), being an "essential worker" does not prevent them from exercising their rights under other leave provisions or virus-related protections. Employers are also cautioned to be gentle with employees who feel unable to come in to work at this difficult time. Work with them to accommodate their concerns as much as possible (without causing undue hardship to the business) rather than simply considering it to be job abandonment. Remind them of the steps you are taking to ensure that their workplace is safe and sanitized. The current climate is stressful for everyone, and employees are rightfully concerned for themselves and their families when a government entity tells them to stay home for health and safety reasons.

That said, employers do have the right to ask additional questions of employees who suddenly express a new reason to be on leave when the Families First benefits come into play on April 2, 2020. For instance, if an employee whose child has been home for two weeks suddenly claims a need to be off work for child care reasons, the employer could reasonably question why child care is required now when it was not required for the prior two weeks. Work with legal counsel to prepare appropriate questions to be asked of employees who asserts their legal rights without creating the risk of a retaliation claim.

For further questions or legal assistance with COVID-19 issues specific to your company, contact the employment attorneys at LightGabler.

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