Ask The Lawyer, GET ON A PLANE, AND YOU’RE OUT OF A JOB’
BOSS WORRIED ABOUT VIRUS TELLS WORKER, ‘GET ON A PLANE, AND YOU’RE OUT OF A JOB’
QUESTION: I have been planning a trip to Texas in August to attend a family gathering. I booked the flight before the coronavirus shutdown. While I’m still a little worried about a cancellation, so far it looks like the reunion is on. Trouble is, my boss heard through the grapevine that I am planning a flight, and he informed me that the company has a new policy forbidding employees from flying during the epidemic. He said if I get on a plane, I can forget about coming back to work. Can they do that?
ANSWER: Employment is at-will in Michigan – employers do not need a reason (good or bad) to terminate workers’ employment, as long as they don’t base an employment decision on an employee or applicant’s race, religion, sex, disability, pregnancy, age or (in Michigan) weight, height, marital status, or protected conduct.
Employers have broad powers to dictate how an employee may act, speak, dress, or interact on the job. They can ban specific hair styles, tattoos, piercings, and certain styles of shoes, prohibit inter-office dating, and, of course, require workers to follow the usual rules on on-time arrival, sick days, drug or alcohol use, computer use, phone use, and confidentiality policies, etc.
But employers can also make rules that reach into a worker’s private life. An employer may base an employment decision on a worker’s off-duty conduct if it causes or might cause an economic loss, or adversely impact the company’s reputation.
For example, employers have been able to require workers to quit smoking, under the rationale that smokers have higher insurance premiums and therefore affect the employer’s bottom line. A worker’s off-duty conduct can result in termination if a company feels it harms the company reputation. Amy Cooper, the woman whose threats to falsely report an African American man to police because he asked her to keep her dog on a leash went viral, not only became a symbol of racism in action, she also lost her job.
The Centers for Disease Control currently advises people against traveling. According to the CDC, travel, especially on a plane, increases your chances of getting and spreading COVID-19, the disease caused by the coronavirus. And Texas, a state that has reopened with few restrictions, has seen the number of people who have contracted COVID-19 grow to more than 61,000 as of May 31 – and the numbers are not going down.
So, your employer can argue that the ban on airplane travel (and travel to Texas) is justified as, conceivably, you could contract COVID-19, either while traveling to Texas, or at your family gathering, and then bring the disease back to the workplace – presenting clear economic harm. Whether the restriction on air travel would be upheld in a court is not clear.
We suggest discussing your travel plans with your employer to see if there might be a compromise that can be reached. Perhaps you could agree to self-quarantine on your return from the family gathering – either working from home, or taking an unpaid leave? While the new policy seems excessive (and perhaps arbitrary, if it targets only airplane travel), failing to follow it could cost you your job. With about 40 million Americans out of work, now is not the best time to risk termination – no matter how unfair it may feel.
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