Regardless of the contemporary classification of a business as essential or non-essential, many employers have temporarily or permanently dismissed employees from their work positions. Further, some employees who have been asked to work have refused. As explained below, most employers may permanently terminate an employee’s employment during the virus crisis regardless of the business’s classification as essential or non-essential.
Employees of essential businesses and employees of non-essential businesses who are provided a safe working environment must work. For businesses that are non-essential under the law, most employers have allowed employees to not work or work from home. However, if the work environment is safe, even though the temporary government orders preclude people from leaving home to get to and from a non-essential job, when an employee fails to work, Ohio law generally allows the employer to terminate the employee’s employment.
There are two circumstances where an employee may not be permanently let go for not appearing for work, and neither of those circumstances deal with whether the employer is an essential business or not. First, employment agreements between the employer and employee can override an employer’s ability to permanently terminate employment. Additionally, employers are precluded from firing employees with disabilities if reasonable accommodations can be made to allow the employee to perform his or her job without unduly burdening the business/employer.
Thus, is having or being exposed to the virus a disability? Being exposed to the virus is likely not a disability. However, being sick with the virus might remotely satisfy the definition of a disability sufficiently to ask an employer for a reasonable accommodation that does not unduly hardship the employer. However, due to the newness of this pandemic, this definition of disability has understandably not yet been proven in the courts.
For businesses with 50 or more employees that are subject to the Family Medical Leave Act, sick employees are not required to work for up to 12 weeks and cannot be fired for the absence. The employer can require the employee to use accrued paid vacation leave time or paid sick leave time during the time away from work. After the paid leave time is exhausted or in the absence of available paid leave, the employer is not legally required to pay an employee who is sick and not working.
Similarly, for larger businesses, an employee is permitted to avoid work under the same situations if the employee is a primary caretaker of an immediate family member who is sick who lives with the employee.
In summary, except for larger employers, employers can generally permanently fire employees who do not work due to the virus, especially if asked. In our region, most small businesses will try (to their utmost financial ability) to accommodate or otherwise welcome back with open arms all employees as soon as employees are healthy and the economy rebounds. However, small businesses do not have unlimited financial resources, so widespread or prolonged absences may force employers to permanently replace absent employees, which is legally allowable.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.