In what may be among the first of many legal disputes arising out of the Coronavirus crisis, an employee in Illinois has filed a lawsuit against the suburban hospital where he worked as a security guard. The plaintiff, Marvell Moody, is alleging that his supervisor berated him for wearing a face mask while working as a public safety officer at Advocate South Suburban Hospital. Moody claims in the lawsuit that he wore the mask because the hospital is treating patients who have COVID-19 and he cares for his 65-year-old mother, who presents an elevated risk for COVID-19 due to recent surgeries she has undergone. The supervisor allegedly told Moody wearing the mask was against hospital policy. Left with no choice other than to assume a risk to himself and an elevated risk to his mother, Moody refused to come to work.

Like most healthcare employers the defendant hospital is likely exempted from Governor Pritzker’s executive order as well as a variety of government agency guidelines relating to workplace safety during the coronavirus pandemic. Moody and Advocate South also are likely exempted from the FFCRA paid sick and expanded FMLA leave provisions. The lawsuit is based on Illinois state law, alleging Moody was “constructively discharged” when he was forced to stop working based on the hospital’s policy against security guards wearing PPE. The complaint also alleges Moody expressed concerns with co-workers that the hospital’s policy was unsafe (suggesting that additional charges may be filed with the NLRB based on a claim the hospital unlawfully interfered with “concerted activities”).

The viability of any of these claims, is questionable. Yet the case is symptomatic of one of the most common issues employers of any industry are encountering during the coronavirus pandemic – employees concerned about the risk to them and/or their families of contracting COVID-19 from work. In the case of the hospital security guard, he claims he was willing to work but only if allowed to wear a protective mask (presumably the same PPE worn by the doctors and nurses working in the same hospital). In so many other similar scenarios taking place in workplaces everywhere, no doubt, employees fear (or disingenuously express fear) that working, for any number of reasons, is too risky. What can employers do? This novel new case may not be instructive as to the law, nevertheless it does suggest why employers may want to think beyond the letter of the law in this era of previously unseen circumstances. Here is a non-exhaustive list of practical things employers might want to consider:

• Other than the rare occasion of an employee seeking to exploit the pandemic in order to stay home watching TV instead of working, employees’ concerns about exposure to the coronavirus are serious and they are legitimate.
• Dismissing the legitimate concerns of employees, even where the law allows for exempted industries and positions, is likely to damage employee relations and your business in the long run.
• This is not to say that employees in critical positions should be allowed to take themselves out of work based solely on personal fears over COVID-19, only that those concerns deserve to be taken seriously.
• Where employee’s fears and concerns can be reasonably accommodated, consider doing so even though the law may not require it; e.g. a security guard wearing a face mask may violate “standard” workplace protocol, but is there anything really “standard” about anything these days?
• Consider reviewing procedures and policies to make interim/emergency exceptions during this pandemic crisis (and communicating to employees that any deviations are just that – temporary/emergency changes).
• Consider issuing a separate procedure, or reaffirming existing procedures already in place, for the purpose of employees communicating issues and concerns specific to the pandemic. Perhaps if something like this were known to the plaintiff security guard he might have raised concerns to someone in HR, or someone other than his immediate supervisor who did what most supervisors do; i.e. enforce existing policies and not deviate from or make them.
• Communicate to supervisors that in a pandemic, while they are not permitted to “go rogue” and make up rules as they go, they should also consider that “business as usual” may not always be appropriate. Supervisors should be advised to bring any unusual situations they encounter with the employees they supervise, to a designated manager’s attention.

Questions? contact attorney James Sherman in our Minnesota office at jasherman@wesselssherman.com; or (952) 746-1700.