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Can Your Boss Make You Come to Work During COVID-19?

a grocery store employee stocking fruitWe have learned that the world doesn’t stop turning, even during a pandemic. Families need to buy groceries, patients need to go to the doctor, chefs and servers need to prepare food for customers. To that end, employees have been returning to certain workplaces in droves after states and cities lifted restrictions in the months after the COVID-19 pandemic began.

While some may find relief in being able to return to work and earn an income, others may be concerned that returning to work can put themselves or a loved one at risk of contracting COVID-19.

So, what are your rights as a worker in this situation? Do you have the right to refuse to come to work for health reasons, or must you follow your boss’s orders to keep your job? We discuss that and more below.

Do You Have to Go to Work During the COVID-19 Pandemic?

Whether or not you must return to work during the COVID-19 pandemic depends on several factors, including the following:

#1. Are You an Essential Employee?

An essential employee is a person who is required to work during a business closure in order to meet operational requirements. The official designation of an essential employee varies from state to state.

In general, there are 14 essential employment categories listed by the Department of Homeland Security. Employees who fall under these categories are, for the most part, required to deliver services around the clock.

  • Healthcare employees

  • First responders, including EMTs, police officers, and firefighters

  • Food and agriculture employees

  • Energy employees

  • Water and sanitation employees

  • Transportation and logistics employees

  • Public workers

  • Manufacturing employees

  • Communications and information technology employees

  • Community-based government operations employees

  • Financial services employees

  • Hazardous material management employees

  • National security employees

  • Chemical management employees

#2. Do You Have an Employment Contract?

Those who are not an essential employee may still be required to return to work during the COVID-19 pandemic if they work in an at-will employment state. At-will employment means that an employee may be fired for any reason, as long as it is not an unlawful reason, such as based on a person’s race, gender, religion, etc.

The only exception to this rule is if the employee is protected by an employment contract or a federal, state, or local law.

#3. Are You Sick with COVID-19 or Have You Been Exposed to Someone with COVID-19?

If you have symptoms of COVID-19 or have been in contact with someone who has COVID-19, your employer will ask you to seek medical attention to confirm your status. If you are deemed medically fit to perform your job, your employer may force you to come to work.

However, if you or someone in your household is found to have COVID-19, the Families First Coronavirus Response Act (FFCRA) provides expanded paid leave for those who work at a private company with 500 or fewer employees. Under this act, you are entitled to the following:

  • Two weeks of paid sick leave at your regular rate of pay where you are unable to work because you are quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

  • Two weeks of paid sick leave at two-thirds your regular rate of pay because you are unable to work because of a need to care for an individual subject to quarantine, or to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or experiencing a substantially similar condition; and

  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds your regular rate of pay where you, who have been employed for at least 30 days, are unable to work due to a need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

#4. Are You High-Risk for Complications from COVID-19?

If you have a qualifying disability under the Americans with Disabilities Act (ADA), you may be entitled to accommodation. For example, your employer may be required to set up accommodations for you to work remotely during the pandemic.

Additionally, if you have worked for an employer who is covered by the Family and Medical Leave Act (FMLA) for one year, and you have a serious health condition or you are caring for a family member who has a serious health condition, you may be entitled to 12 weeks of leave under this act.

Simply put, essential employees are required to return to work during this time unless they meet the criteria for one of the exceptions listed above. Non-essential employees, on the other hand, are required to work from home when possible, as required by many state ordinances.

In short, your employer may fire you for refusing to come to work if you are healthy, you are not responsible for anyone affected by COVID-19, and you are not under contract.

Who’s Responsible if You Get COVID-19 at Work?

Essential employees come in contact with people nearly every day. There is no doubt that these essential employees are at a much greater risk of contracting COVID-19 than other workers who can stay at home.

Therefore, essential employees may wonder whether they can hold their employer liable for damages if they contract COVID-19 in the workplace.

The answer is complicated. Generally, your employer cannot be held responsible if you contract COVID-19 while employed. This is because it’s difficult to prove that you contracted COVID-19 in the workplace as opposed to somewhere else.

However, it’s possible that your employer can be held liable for negligence if they failed to provide you with personal protective equipment (PPE), did not require customers or employees to wear masks in your workplace, or required employees to come to work even when they exhibited symptoms of COVID-19.

Our attorneys at Shrader & Associates L.L.P. are backed by decades of legal experience and can help you seek justice against your employer if you contracted COVID-19 due to their negligence. Call us at (877) 958-7920 to schedule a consultation.

Does Workers’ Compensation Cover COVID-19?

If you cannot sue your employer after contracting COVID-19, it may be possible to recover compensation through a workers’ compensation claim instead. In general, workers’ compensation does not cover community-spread illnesses like the cold or flu because they cannot be tied directly to the workplace. However, some states have taken action to extend workers’ compensation to include first responders and healthcare workers affected by COVID-19.

Additionally, some federal workers are more likely to get claims approved under the Federal Employees Compensation Act (FECA), including first responders, law enforcement officers, firefighters, healthcare workers, public health personnel, and more. These workers may file a claim for workers' compensation coverage as a result of COVID-19 with Form CA-1, Notice of Traumatic Injury and may be entitled to the following benefits:

  • If a COVID-19 claim is filed by a person in high-risk employment, the Office of Workers' Compensation Programs (OWCP) DFEC will accept that the exposure to COVID-19 was proximately caused by the nature of the employment. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.

  • If a COVID-19 claim is filed by a person whose position is not considered high-risk, OWCP DFEC will require the claimant to provide a factual statement and any available evidence concerning exposure. The employing agency will also be expected to provide OWCP DFEC with any information they have regarding the alleged exposure, and to indicate whether they are supporting or controverting the claim. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.

Contracted COVID-19 in the Workplace? Contact Us Today

If you or someone you love contracted COVID-19 in the workplace, Shrader & Associates L.L.P. can help you identify any and all liable parties, file the appropriate paperwork, and recover the compensation you need to care for yourself and your loved ones.

Contact Shrader & Associates L.L.P. at (877) 958-7920 to schedule a consultation.


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