Can my employer force me to return to work during the COVID-19 pandemic?

This is a question that we are hearing more and more. Unfortunately, all jobs and employment situations are not created equal. Likewise, all people do not have the same concerns, comorbid conditions or living arrangements. When trying to answer this question from a legal basis, numerous areas of law and policy must be considered as such is not a simple employment law question.

On April 27, 2020 the State of Colorado Adopted an Emergency Rule regarding returning to work amid the COVID-19 pandemic.  It set forth to assure that workers would not lose their unemployment benefits for refusal to return to work should the working conditions be considered unsafe due to COVID-19. This was specifically directed to vulnerable workers. Such Emergency Rule added guidance for the Department of Labor and Employment in determining whether an individual would lose unemployment benefits by setting forth COVID-19 related factors including the objective risk of the workplace along with the risk to the specific worker or household members of the worker. This rule specifically adds these considerations to Colorado Revised Statue 8-73-108(4)(c), (5)(a) and (5)(b).  While this certainly adds some clarity to the situation it still establishes a criteria which is not all that straight forward. The Emergency Rule calls for setting forth the “objective” risk relatable to COVID-19 and then contemplates comparing that risk to the general risk for the particular job. Determining just what level of “objective” risk is necessary is not defined nor is the comparative risk. Thus, a prospective employee considering whether to accept a job does not have a true way to determine whether benefits will be lost if the job is refused.

Another situation occurs when an employee who has indeed returned to the workplace believes the employer is not following the required safety protocol. In this instance we have recommended that the employee clarify this issue by contacting the local health department for the county in which they are employed. Remember, you can never be forced to return to work, but there might be consequences if you fail to do so.

We have also heard this question from some people under an active workers’ compensation claim. From this point of view the answer once again really depends on all the conditions outlined above.  The simple answer is whether the offer to return to work is “reasonable” under all the circumstances including the COVID-19 return to work criteria. Whenever the word “reasonable” comes into play in the legal setting it requires that all the factors be identified and weighed in proportion to each other. A blog such as this cannot identify what would be considered reasonable and what would not be considered reasonable with regard to return to work. Certainly, an offer to return to work during an active workers’ compensation claim has significant implications on the claim. If you face this situation it is best to seek competent legal counsel. At Anderson & Lopez we have helped thousands of injured workers with their workers’ compensation claims.   

These are trying times and sometimes answers can be difficult to obtain. At Anderson & Lopez we help Coloradans that have been injured on the job or in auto accidents. Call Anderson & Lopez for expert advice from an injury attorney with over 30 years of experience personally representing the injured in Colorado. Call us today 719-471-1818; consultations are free, and you only pay if we collect for you.  You don’t have to pay more for expert advice and personal representation.