Thinking of Bringing Workers Back in Disregard of Emergency Orders?  Think Again

After over a month of stay-at-home orders and business closures, it’s a common thing for employers to get frustrated with a lack of production and shrinking profit margins.  For public employers, it can be disappointing to see your well-thought out plans canceled after a lack of labor power leads to services you’ve always provided being cut.  With all of the frustration, it could be tempting for an employer to throw caution to the wind, and bring employees back to work.

Across the country, we’ve seen businesses defying government orders to stay closed during the pandemic.  Even some giants of industry have publicly announced they will be defying stay-at-home orders, and placed themselves on the front lines of their business, and ordering that their employees do the same.

Before you get the same idea and throw your doors open to your workers and to the public, it is important to understand the consequences of your actions.  First, and foremost, the orders for businesses to close were not only for the protection of customers, but for the protection of everyone.  Employees intermingling in close quarters trying to be productive are in danger of contracting and spreading the virus, no matter how much they would like to be at work.

Second, many of the stay-at-home orders have built in penalties for businesses that defy the orders.  In Minnesota, those businesses that defy the stay-at-home order are subject to a civil penalty of up to $25,000 per occurrence.  That may seem like a drop in the bucket for some of the larger businesses out there, but it can add up over time.

Finally, if an employer is ordering employees to ignore stay-at-home orders, and disciplining those employees who refuse to do so, they are not just endangering their employees, they are trampling on workers’ rights.  An employer’s willingness to be arrested on behalf of his or her employees will not protect his or her employees from being arrested or fined for their own violations of the law.

Workers for private companies across the country have protection under the National Labor Relations Act, whether they are in a union or not.  If a group of employees, collectively, defies orders from an employer that are either unsafe, or illegal, their jobs are protected under the NLRA, and they will be returned to duty if they choose to allege an unfair labor practice.  In addition, it is well-known that in a unionized environment, the two best defenses for discipline based on insubordination are that the order was either unsafe or illegal.

Restrictions are being loosened as the weeks go by.  Minnesota is well on its way to reopening, with even more businesses being allowed to open back up to customers as of Monday.  The last thing an employer wants to do now is break the law in a fit of frustration, or even worse, trigger the spread of the Coronavirus that leads to your business being shut down altogether.

The threat of spreading COVID-19 is still present, and hasty actions could take us back to where we started.  It is important to be mindful of what is best for employee safety, which is critical for any successful business.  If you, or your organization, need assistance navigating the return to business for you and your employees, contact the Wiley Law Office, for advice that works.