• themomattorney

Essential Employees Instructed to Go to Work? Verify Your Rights

Updated: Apr 7, 2020

As an employment attorney, I've received many questions this past week from employees asking if they can stay home or telework. "My boss tells me I'm an essential employee and I have to keep coming to work." When I looked into some of these workplaces, they were not, in fact, essential. Abusive managers are overusing the usage of "essential employees" to circumvent employment law. They are denying requests for accommodations such as telework or leaves of absence because they know invoking the "essential employee" defense will make them get away with it. If you're being told you're an essential employee, make sure that you're actually an essential employee .

Many governors and mayors are ordering citizens to go into lockdown at home. As a result, there is a conflict of interest between these directives and the demands of some of our industries. There is also a conflict of interest between the workers' individual rights and the organizations' need for staff to serve public health. To keep these services going, the orders carve out "essential employees" that are exempt from the lockdown orders.

Every state, County, City, and often school or health care District has their own specific lists of which employees are essential. The list will be different but similar for every municipality. The following is the list by California's Governor, but I encourage you to do your own research depending on where you live.

The California State Public Health Officer designated a list of "Essential Critical Infrastructure Workers." Some of the professions include:

- Healthcare/Public Health Sector: those working on COVID-19 testing and prevention, physicians, dentists, psychologists, nurses and assistance, pharmacists, social workers, lab personnel, technicians of medical equipment, shelter workers, vets, etc.

Health plan managers, billers, public health researchers, cybersecurity staff, incident managers, and similar jobs are included, if they cannot work remotely. So if your employer is making you come into work, verify if the directives actually mandate your physical presence. If you can do the job from home, you should be able to.

- Emergency Services: law enforcement, fire workers, search and rescue, maritime, aviation, EMTs, 911 call center employees, private security, abuse responders, animal control.

- Public works: workers supporting dams, bridges, water, traffic signals, plumbers, electricians, etc.

- Food and Agriculture: grocery workers, restaurant takeout operations and delivery employees, food manufacturer workers, farm workers, sanitary workers, vaccine workers, etc.

- Education: workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors.

- Hotel workers where hotels are used for COVID-19 mitigation.

- Commercial retail stores that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers.

Other sectors include: defense, finance, jobs in electricity, petroleum, gas, water workers, transportation, communications, IT, workers responsible for safety net benefits,

Also, laundromats. We still need clean undies, am I right? Especially if we run out of toilet paper.

Read the full California list here.

Generally, essential employees include those working in healthcare, energy, transportation, water, nuclear sites, emergency services, and a few select others.

Does that mean the organization can force you to work if you're an essential employee? No, unless you're in the military or you contracted to serve during a crisis like this. You still have freedom to choose your place of employment. But be careful. If you stop showing up to work when you're a legitimately essential employee, you may risk getting lawfully terminated. Make sure to first request a leave of absence. You can also still express reasonable safety concerns. Communicate your concerns with your employer and try to reach a compromise.

Essential employees still have employment rights, but being essential means is that the organization has an excellent defense against not granting certain employment rights. Request to work from home? No, you're an essential employee. Request for a leave of absence? Can't do that, essential employee. If you're needed to protect the health and safety of others, your request for accommodations may legitimately be denied. I can't say when the defense is well-founded and when it's not. It will be a fact-based analysis based on your specific situation. Are you the only cardiologist at the only hospital in town? The hospital would have a good basis to deny your request for a leave of absence right now. Are you a medical biller that can do her entire job on a desktop computer? Not so much.

Here's the issue we all need to look out for: exploitative employers are using the "essential employee" defense in a discriminatory fashion. They are sending managers to work from home, while low paid staff has to stay in the stores. I received a call by an employee of a well-known grocery store. They are making all elderly, Hispanic workers sanitize and stock the stores at night, while the younger managers are working from home during day. The "essential employee" defense is being used against elderly, against women, against minorities, and against veterans.

We are also seeing managers ignore the lockdown executive orders and forcing their employees to physically clock in and out of work, even when the duties can be performed from home. When the employees object, the managers tell them they are "essential employees" and they have to keep coming to work. I have also seen managers ask their employees to sign the following waivers: "I acknowledge that the company has given me the option to stay home from work due to the circumstances surrounding COVID-19. However, I have voluntarily chosen to continue working at this time." This is essentially a choice between resigning and signing your rights away. If you don't sign, and are terminated, that may be a wrongful termination. However, many employees, forced to keep their jobs because they need income, may feel reluctant being "difficult" during an economically fragile conundrum.

This is not okay. These managers are taking advantage of the easy excuse of "essential employees." We cannot let them dilute the specific intent of these orders and cementing a public health risk by forcing workers to report to work in person.

If you see a pattern of discrimination or abuse at your place of work, what can we do to keep these companies accountable? In most executive orders, there are criminal punishments for violating them. In addition, in every state, there are laws in place protecting fair competition, so the business may be held liable by the Attorney General.

In terms of employee rights, it's important for the employee to speak up once he or she detects the violation. If the employee is not an essential employee, the employee has a reasonable argument to telework or take a leave of absence by explaining he or she is following the government's lockdown orders. If the employee is disciplined or terminated on that basis, the employee may have a claim for retaliation and wrongful termination. Make sure to consult with a local attorney.

DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Momattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.

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