Employee Rights in a Pandemic

Some employers are using the COVID-19 Pandemic to the disadvantage of their employees. Employers have frozen wages, fired employees, forced employees to work at the office or plant despite the COVID restrictions on employers. In other words, they have ignored the legal restrictions on their activities as employers. The result is diminished safe working conditions and fear for employee health and safety.

The point of the COVID-19 orders is to curtail the spread of the coronavirus. Some employers even faulted the governor for the restrictions he imposed on businesses. They may require employees to come to work during the COVID-19 Pandemic. There are government emergency orders permitting businesses to remain open during the Pandemic.

A recent precedent-setting Vermont court decision upheld the governor’s legal right (if not the obligation) to restrict business operations. For example, a Rutland exercise gym owner sued the state for ordering it to close its doors during the Pandemic. The attorney general successfully sought a preliminary injunction to close his business.

The gym owner contended that the governor’s restrictions were ruining his business and foreclosing his ability to earn a living. He sought to recoup lost earnings and collect damages from the state for emotional distress he experienced because of the closure and loss of income.

The gym owner asserted that the closure violated the Vermont Constitution in several ways, including describing the closure of his business as an “unlawful taking” without just compensation.

In a well-considered and lengthy decision, superior court judge Robert Mello dismissed the liability case, upholding that the governor’s extensive health emergency powers for the protecting the public. He ruled that the governor’s actions were not a “governmental taking” that required compensation for the gym owner. He is still considering penalties against the gym owner for violating the governor’s orders.

The point is – the governor’s power to close and restrict businesses is virtually unlimited so long as it protects employee and public safety.

Beyond the governor’s orders, state and federal laws also require employers to provide a safe and secure workplace, especially during the Pandemic. Unfortunately, we have found employers do not always follow the mandates to provide safe workplaces.

We have accepted clients who complained that their employers were violating the restrictions. One employer, for example, is a healthcare provider who required its employees to work in-person at its facility but refused to sanitize his headquarters. Neither patients nor employees were required to wear masks or socially distance. In that case, our client had a pre-existing auto-immune disorder, further endangering her health in the Pandemic environment.

She was forced to resign. In the law we referred to that action as “constructive discharge,” meaning she was forced to resign. We also brought violation of public policy claim and other wrongful dismissal claims on her behalf.

In another case, when our client protested being forced to work in similarly unsafe working conditions, her employer actually fired her. Our claims there invoked Vermont’s Occupational Safety and Health Act (“VOSHA”). The Act forbids employers from forcing employees to work in unhealthful or dangerous conditions.

Both cases are is currently working through the discovery phase of the action. But one positive impact of the Pandemic is that most civil cases are settling at early stages. The early settlements shorten the duration and expense of the lawsuit. The Pandemic, has delayed civil cases for many months to trial.

Employers may require employees to sign a liability waiver diminishing or eliminating employees’ rights to file a complaint under the Occupational Safety and Health Act. But workers continue to have the right to file a safety or health complaint under section 8(f) and/or a retaliation complaint under section 11(c), regardless of any language contained in the waiver.

A settlement reduces the time for litigants to achieve satisfaction, acquire a monetary award and move on with their lives.

When employees are in doubt about their working conditions, it is best to contact a lawyer. Most firms, like ours, offer free consultations for individuals who feel their employer is taking advantage of them and have questions about their legal rights. Employment lawyers can guide them through the situations – either by saving a employee’s job or pursuing legal action to resolve the troubling situation.