Can I be fired if I don’t return to the office?

In most cases, yes, you can be fired if your employer requires you to work in the office and you refuse. If you are scared to return to the office because of the COVID-19 pandemic, that may not be enough. You will need a legal reason and being scared or nervous is not a legal reason. Here are a few federal laws that may help you determine if you have legal protection:

The Occupational Safety and Heath Act (OSH Act)

The Occupational Safety and Health Act (OSH Act) was created to ensure safe and healthy workplace conditions for employees. While you are entitled to a safe workplace under this law, being nervous to return to the office will not be enough to invoke this law as your protection. You will need to show by specific example that it is unsafe to work in the office. If you feel unsafe because your employer is not following safe social distancing or the recommended hygiene guidelines, you may want to consider filing an OSHA complaint. Your employer cannot retaliate against you for exercising your safety and health rights.

National Labor Relations Act

The National Labor Relations Act (NLRA) provides protection to private sector employees that go on strike due to unsafe working conditions. Two or more employees must go on strike and, just like the Occupational Safety and Health Act, the employees must prove that working conditions are unsafe. Being nervous to return to work is not enough to invoke protection under this law.

The Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) is a recently created act due to COVID-19 and provides protection to private sector employees through December 31, 2020. If you work for an employer with less than 500 employees and have tested positive for COVID-19, have COVID-19 symptoms or have been ordered to quarantine by your doctor or the government, you can take two weeks of paid sick leave at your regular pay (subject to limits).

If you have to care for someone that has been quarantined, or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, you can take two weeks of paid sick leave at two-thirds of your regular pay rate (also subject to limits).

If you have worked for an employer with 500 or less employees, and have worked for at least 30 days, you may also be entitled to extended paid family leave at two-thirds the regular rate of pay (subject to limits) if you need to care for a child whose school or child care provided is closed due to reasons related to COVID-19.

What should you do if you do not have any legal protection?

If you are employed in a position where the job duties can only be performed in the office (i.e. dental hygienist), communicate your concern with your employer and recommend ways that you would feel safe working in the office. You are going to have a hard time convincing your employer that you need to stay home if they absolutely need you in the office. Your best approach is safety recommendations. If you are in a position that allows you to partially or fully work from home, communicate your concerns with your employer. If your employer still wants you in the office, try recommending a work from home/office schedule where you would be allowed to work from home a few days per week.

The words and other content provided in the blog, and in any linked materials, are not intended and should not be construed as professional advice (please read the Terms and Conditions for additional information).

Alicia H. Lillegard, Esq.

Alicia Lillegard has over 20 years of experience in employment law, human resources and insurance, working with with large blue chip companies, startups, and not-for-profit organizations. Ms. Lillegard is currently Managing Director of New England Human Capital, a human resources consultancy which advises small and midsize businesses on Human Resources compliance, including employment procedures, employee relations and employee benefits. She holds degrees from Loyola University Chicago and John Marshall Law School.

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