Governor Sununu issued several emergency orders concerning COVID-19 including the recent Emergency Order #17 pursuant to Executive Order 2020-04 on March 26, 2020 in which he provided a stay-at-home order. That order stated that all businesses and other organizations that do not provide essential services, that were defined in the order, shall close their physical workplaces and facilities to workers, customers, and the public and cease all in-person operations beginning just before midnight on March 27, 2020 and to continue until at least May 15, 2020. The list of essential businesses is fairly extensive, but both the essential and non-essential businesses are still encouraged under the order to continue their operations through remote means; being teleworking which does not require employees, customers, or the public to report to the company’s physical facility. The Governor has only encouraged, not required, businesses to set up a telework program. A teleworking program success depends largely on the work performed, the technology available to perform that work remotely, and whether the workforce would be productive without the supervision and peer review that occurs with face-to-face interaction with supervisors and co-workers.
For those employees in an essential business that are not given the option to work from their home they may want the option to not work because of concerns over exposure to the COVID-19 virus. If an employee elects stay home and not work due to fear of exposure to the COVID-19 virus, he may not have job protection to return once the pandemic is over. This of course is not to suggest that health care workers cannot insist on safety precautions including safety gear yet other workers in an essential business should not expect that they can stay at home and have job protection absent the employer agreeing to them working remotely. Furthermore, if an employee determines to stay home and not work due to concern over exposure to the COVID-19 virus that may make the employee not eligible for unemployment benefits yet that is a determination to be made by New Hampshire Employment Security and could be determined on a case by case basis. None of the above minimizes the concerns over exposure to the COVID-19 virus. There may also be other laws that apply to the situation. For example, a parent may be required to care for the minor child whose school closed due to the pandemic. The Families First Coronavirus Response Act applies to his situation and this article only addresses the implications of not going into work due to concern over exposure to the COVID-19 virus.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].