Self-quarantining workers have legal backing, prof says
A Case Western Reserve University law professor said employees have protection under the law from being fired if they don’t show up to work because they’re self-quarantining to prevent the spread of coronavirus.
Attorneys who practice employment law in Ohio, however, said the professor’s view may be idealistic at best and may not account for how courts in the state have viewed lawsuits over firings, let alone how long the legal system would take to rule on such cases.
Katharine Van Tassel, a visiting professor at The Law-Medicine Center at Case Western Reserve University’s law school, said in an interview Monday that staying home if you have flu-like symptoms, test positive for the virus or come into contact with someone who did is not unlike jury duty or serving in the National Guard.
Ohio law has protections for those situations baked in for at-will employees, which means an owner or boss can fire someone for almost any reason. Because officials are now telling people to stay home to protect the virus from spreading, the same protections apply, Van Tassel said.
“Basically, what people are doing are sacrificing their individual liberty and paychecks in order to protect the public good,” the professor explained. “That’s actually a civic duty.”
The professor said knowing these rights is essential as the coronavirus spreads, and the economic fallout from it continues.
Many in the service industry are already out of work as a result of orders by the state to close dine-in restaurants, gyms, hair salons and other commonly traveled businesses, as well as banning gatherings of 50 people or more.
As the virus continues to spread and the government encourages people to stay home, more businesses might close — even temporarily — because of the lack of foot traffic as residents hunker down.
Still, many businesses are telling employees to work from home.
The U.S. Senate also passed a bill Wednesday, which President Donald Trump is expected to sign, to ensure paid leave for many affected by the coronavirus and its economic impact, according to The New York Times.
Van Tassel said she didn’t think this section of the law is talked about much because the recent measures are unlike anything U.S. citizens have seen in several generations.
“This is just not something that people have had to face before,” she said. “It’s not something that’s part of the lexicon.”
The virus and the fallout are still relatively new, and the professor did not point to any recent lawsuits or court decisions that said a business owner fired an employee because the employee self-quarantined.
She did, however, point to an Oklahoma Supreme Court case in which an employee at a nursing center was fired for not showing up to work when he had. That state’s high court said that firing a nurse for missing work because of the flu would violate public policy.
She also pointed to other Ohio Supreme Court cases that, while perhaps not as on the nose as the one in Oklahoma, still spell out the type of protections she says workers have during the pandemic.
If a former employee gets to the point where they want to take a case to court for being wrongly discharged, Van Tassel said specific steps employees take might help them in court. Getting a doctor’s note would be helpful, she said, or even a letter from a city or county health department.
The professor also said people who are more at risk of catching the virus — including people over 60 years old and those who have asthma or heart disease — may be protected under federal law if a business doesn’t make accommodations.
Two lawyers who spoke to cleveland.com, however, said the professor’s interpretation of the law may not pan out in practice.
Subodh Chandra, a Cleveland lawyer whose firm handles employment law cases, pointed to an Ohio Supreme Court case from February that he said effectively gutted a portion of Ohio employment law.
The court’s 5-2 decision upheld the firing of a former employee at the Riverstone Taverne in Medina County who said she was wrongly let go for creating “drama” after complaining that the owner was underreporting her income to the state.
The justices said state law provided for other ways to address the issue the employee highlighted.
Chandra said lawyers could previously make claims regarding a public policy even if there wasn’t a specific Ohio law that spelled out that an employee was protected. That is now gone, he said.
“It’s illogical, it lacks common sense, but that’s where we are,” he said.
Fellow Cleveland lawyer Matthew Besser said he doesn’t think that decision entirely lines up with what Van Tassel was talking about. It is, however, another example of the state’s high court chipping away at employment law as it pertains to public policy concerns.
“They made it like threading a needle,” Besser said of the Ohio Supreme Court. “Lawyers know to look at those claims as the claim of absolute last resort. They are so disfavored.”