Repercussions for refusing workplace medical testing for COVID 19

[AMSMPH]

Jurisdiction

Missouri

I will not reveal my identity but I work for a meat processing facility. We have been minimally affected by COVID 19 and were never shut down. I have not taken a day of vacation in the 2020 year. Our facility is currently sending home suspected/confirmed cases of COVID 19, testing is performed by the health department and is confidential. When an employee is set home they receive a minimum of 10 days paid leave if they test negative.

In the very near future, my employer is planning to offer in-house COVID 19 testing through a 3rd party contractor. At this point it time, upper management is communicating that testing will be mandatory for everyone, but so far there is no official response or plan to deal with those who refuse to submit to testing. There is also no plan to test employees on vacation during the week testing will occur either.

As a member of management, can I be sent home, denied paid, or otherwise terminated for failing to comply with this testing requirement? The facility I work at is in Missouri, it's head quartered in Arkansas.

 

[Zigner]

I will not reveal my identity but I work for a meat processing facility. We have been minimally affected by COVID 19 and were never shut down. I have not taken a day of vacation in the 2020 year. Our facility is currently sending home suspected/confirmed cases of COVID 19, testing is performed by the health department and is confidential. When an employee is set home they receive a minimum of 10 days paid leave if they test negative.

In the very near future, my employer is planning to offer in-house COVID 19 testing through a 3rd party contractor. At this point it time, upper management is communicating that testing will be mandatory for everyone, but so far there is no official response or plan to deal with those who refuse to submit to testing. There is also no plan to test employees on vacation during the week testing will occur either.

As a member of management, can I be sent home, denied paid, or otherwise terminated for failing to comply with this testing requirement? The facility I work at is in Missouri, it's head quartered in Arkansas.

Yes to each.
What part do you object to?

 

[AMSMPH]

Yes to each.
What part do you object to?

What do you mean by yes to each? Yes to I can be sent home, denied pay, and/or terminated?

The EEOC guidance seems to apply more towards businesses that were shut down. Also, the test requires consent by the employee, meaning, if I failed to give my consent for a medical test that has never been a condition of my employment, the employer may essentially use "intimidation" tactics to attempt to force me to surrender my legal right to consent to a medical test.

 

[Zigner]

What do you mean by yes to each? Yes to I can be sent home, denied pay, and/or terminated?

Yes.

The EEOC guidance seems to apply more towards businesses that were shut down. Also, the test requires consent by the employee, meaning, if I failed to give my consent for a medical test that has never been a condition of my employment, the employer may essentially use "intimidation" tactics to attempt to force me to surrender my legal right to consent to a medical test.

No, you are not being forced to do so. Every choice has consequences. You just need to weigh those consequences while making your decision.

 

[adjusterjack]

What do you mean by yes to each? Yes to I can be sent home,

Yes, you can be sent home.

denied pay

Well, you can't be denied pay that you have already earned but your employer doesn't have to pay you while you are on suspension.

terminated?

Yes.

Also, the test requires consent by the employee, meaning, if I failed to give my consent for a medical test that has never been a condition of my employment, the employer may essentially use "intimidation" tactics to attempt to force me to surrender my legal right to consent to a medical test.

Yes, that's exactly right. Refusal of a mandatory test can result in termination.

Look at it the same as a drug test. Your boss comes to you and says we're drug testing everybody today. Follow this nurse to the rest room, she will wait outside the rest room door and collect your sample when you are finished. Oh, you refuse. OK, you're fired. Let's go to your desk, pick up your personal stuff and I'll walk you out the door.

Now, please come down off your high horse. This is a deadly medical crisis. Stop acting like a petulant child.

 

[AMSMPH]

Yes, you can be sent home.



Well, you can't be denied pay that you have already earned but your employer doesn't have to pay you while you are on suspension.



Yes.



Yes, that's exactly right. Refusal of a mandatory test can result in termination.

Look at it the same as a drug test. Your boss comes to you and says we're drug testing everybody today. Follow this nurse to the rest room, she will wait outside the rest room door and collect your sample when you are finished. Oh, you refuse. OK, you're fired. Let's go to your desk, pick up your personal stuff and I'll walk you out the door.

Now, please come down off your high horse. This is a deadly medical crisis. Stop acting like a petulant child.

A mortality rate of 0.05% is not deadly and it doesn't constitute a medical crisis. I won't share my credentials to protect my identity but I happen to be an expert when it comes to epidemiology and public health. That's not my issue, my question is under what law authorizes termination for this? Missouri is not a right to work state. All I can find is EEOC guidance, my employer also only has guidance, we have no official policies and no official policies are posted any where in the facility for employees. So it would appear that the employer would have serious legal issues if this was to be challenged in court.

*Am I on the wrong website for legal advice or is this just mumbo jumbo opinions?

 

[justblue]

@cbg @Tax Counsel

I've tagged a HR expert and a Attorney to assist you.

 

[adjusterjack]

A mortality rate of 0.05% is not deadly and it doesn't constitute a medical crisis.

Gee, tell that to the people whose family members have died from it. I'm sure they'd be happy to hear your opinion.

my question is under what law authorizes termination for this?

Simple. There is no law (to my knowledge) that prohibits it. As far as Missouri is concerned (so far) an employer can institute any procedure to insure a virus free workplace. Sure, 6 months or a year or years from now there could be (and probably will be) tons of litigation addressing the perceived infringement on rights.

Missouri is not a right to work state.

You're right but I have no idea why you brought that up as it has absolutely nothing to do with this discussion. "Right to work" means you can't be denied employment because you don't want to join a union. That Missouri is not a "right to work" state means, if your industry is unionized, you must join or you don't work.

Perhaps you are confusing "right to work" with "at will employment" which I won't go into since you're in management and should know all about it or be able to look it up.

*Am I on the wrong website for legal advice or is this just mumbo jumbo opinions?

Typical shoot the messenger attitude. Let's see how you feel when the HR person and attorney weigh in on the subject.

By the way, you are always free to hire an attorney if you don't like the answers you get here.

 

[army judge]

At this point it time, upper management is communicating that testing will be mandatory for everyone, but so far there is no official response or plan to deal with those who refuse to submit to testing.

They'll get around to that, sooner or later.

No need to wait, I'll tell you what it'll be.

If a person refuses, that person will be summarily terminated.

As a member of management, can I be sent home, denied paid, or otherwise terminated for failing to comply with this testing requirement?

Unless you have a personal employment contract that states the reasons for which you can be terminated, or you are a union member covered by a CBA, YES, Tyson can terminate you without a reason, and simply say to you, "Hey you, you're fired. These nice security officers will escort you off our property, don't return."

Employers in Missouri are required to pay a discharged employee all wages due at the time of dismissal.

If not paid at that time, the employee should contact his or her former employer by certified mail return receipt requested, requesting wages that are due.

The employer has seven days to respond to the written request.

 

[Tax Counsel]

That's not my issue, my question is under what law authorizes termination for this?

Under the American system of law, the general rule is that everything is legal unless some law prohibits it. So there does not need to be any law that authorizes the employer to fire you for refusing. The employer may do it unless some law says the employer may not fire you for it.

Under federal law, the primary law that addresses this is the Americans with Disabilities Act (ADA). Under that Act an employer generally may not require employees who have already been hired to submit to medical testing with a few exceptions. The exception that applies in this case is the one that allows an employer to test employees when the test is "job-related and consistent with business necessity." 29 CFR § 1630.14(c). Here, that test is easily met as the employer is justified in preventing the spread of a disease that is considered, at least at the present time, by medical experts as being more deadly than the common illnesses that we are used to dealing with (colds, flus, etc) and that is spread fairly easily. There could be problems if the employer was selecting only a few employees to be tested based on reasons that amount to illegal discrimination, but your employer evidently plans for all employees to be tested, so that doesn't present a problem.

So, in short, it appears that your employer would be on solid ground in firing you should you refuse to be tested.

Missouri is not a right to work state.

This is something that causes a lot of people confusion. All that "right to work" means is that you cannot be required to join a union to get a job. So unless you were seeking work in a union shop it wouldn't matter at all to you whether your state is right to work or not.

 

[cbg]

An expert in epidemiology and public health is working at a meat packing plant. Why am I having trouble believing that?

In any case, the answers above are correct. You can, in 49 states including Missouri and sometimes in the 50th, be sent home without pay or terminated if you refuse the testing under these specific circumstances. Regardless of your "credentials".

 

[flyingron]

Actually right to work specifically means the employer and union can't make an agreement to exclude non-union employees (or require employees to join the union). But it is correct that this is often confused with "at-will employment" which is the rule in 49 states, which says the employer (barring illegal discrimination) doesn't have to hire/retain an employee any more than an employee has to work somewhere he doesn't choose to work.

There doesn't need to be much justification for medical tests. When I was working at a major medical research facility (Johns Hopkins Hospital/Medical School), I got far more pervasive health checks than just a simple COVID swab. And I wasn't anywhere near the patients. I was a computer researcher. My office was five floors up in a building that patients weren't even permitted to enter.

 

[zddoodah]

As a member of management, can I be sent home, denied paid, or otherwise terminated for failing to comply with this testing requirement?

All of these things can happen. All of them would be legal (other than denying you pay for time already worked).

my question is under what law authorizes termination for this?

There is no law that expressly "authorizes termination for this." However, in the two states you mentioned (and, for all practical purposes, every state), employment is "at will," which means an employee can legally quit at any time for any reason, and an employer can legally fire an employee at any time for any reason that is not expressly made illegal. The only exceptions are if: (1) the employer and employee have a contract that limits these rights; (2) the employee is a member of a labor union that has a collective bargaining agreement with the employer; and (3) the employer is a governmental entity and the applicable civil service laws limit what the employer may legally do.

Missouri is not a right to work state.

As others have explained, that's irrelevant to your situation.

Am I on the wrong website for legal advice or is this just mumbo jumbo opinions?

When you seek free legal information from anonymous strangers on the internet, you may have to suffer with folks who want to bicker about things that are not relevant to the legal issue and sidetrack the discussion.

 

[Zigner]

When you seek free legal information from anonymous strangers on the internet, you may have to suffer with folks who want to bicker about things that are not relevant to the legal issue and sidetrack the discussion.

While definitely true, that did not occur in this thread.