Working During Stay-at-Home Orders in Virginia

Public health emergencies such as the COVID-19 pandemic raised a difficult question for many Virginians: can an employer force you to work when the government tells people to stay home? This question sits at the intersection of emergency orders, workplace safety rules, and Virginia wrongful termination law. Understanding how these pieces fit together is essential if you are asked to report to work during a stay-at-home or shelter-in-place directive.

This guide explains the main legal concepts that come into play, how Virginia and federal law treat workplace safety during pandemics, and when refusing unsafe or unlawful work can support a claim for wrongful termination. It is written for employees, but employers will also find it useful for understanding their own obligations.

1. Emergency Orders vs. Employer Instructions

During a declared emergency, the Governor of Virginia can issue executive orders, including stay-at-home or shelter-in-place directives aimed at limiting movement and slowing disease transmission. At the same time, many businesses remain open, especially those designated as essential, and employees may still be instructed to report to work. This can create confusion when the government says “stay home” but your employer says “come in.”

Key points to understand about emergency orders:

• Scope of orders: Executive orders typically classify which businesses may operate, under what conditions, and whether individuals must limit trips outside the home to essential activities.
• Legal effect: Violating an executive order can, in some circumstances, be treated as breaking the law, even if enforcement varies by locality and situation.
• Business exceptions: Many orders carve out exceptions for businesses that provide critical infrastructure, health care, food, or other essential services, allowing them to operate with conditions and safeguards.

When your employer insists you work despite a stay-at-home order, the core question becomes whether the employer’s demand requires you to violate the law or whether it falls within an exception. That distinction is central to wrongful termination analysis in Virginia.

2. Virginia Wrongful Termination and Bowman Claims

Virginia is generally an at-will employment state, meaning employers can terminate employees for almost any reason, or no reason, as long as it does not violate a specific law or public policy. However, Virginia recognizes a narrow category of wrongful termination claims known as Bowman claims, based on a decision of the Supreme Court of Virginia.

In essence, a Bowman claim arises when an employer fires an employee for exercising certain rights or refusing to engage in conduct that would violate a statute. Courts have treated these claims as a way to enforce clear public policy expressed in Virginia law.

In the context of a stay-at-home order, some Virginia employment attorneys have argued that an employee may have a Bowman claim if:

• The executive order is treated as law that prohibits certain in-person work; and
• The employer demands that you break that law by coming to work; and
• You refuse, and are fired because you refused to violate the order.

These claims are fact-specific, and courts will consider the language of the order, the type of business, and whether the employer genuinely required unlawful conduct. Employees who believe they were terminated for refusing to obey an illegal instruction should seek legal advice promptly, as deadlines for bringing claims can be strict.

3. Workplace Safety Obligations During a Pandemic

Even when emergency orders allow a business to operate, employers must take reasonable steps to provide a safe workplace. In Virginia, this obligation is reinforced by both federal OSHA standards and state rules issued for COVID-19.

Virginia adopted emergency workplace safety standards that require employers to assess COVID-19 risks and implement controls appropriate to the level of exposure in each job. These standards include:

• Hazard assessment: Employers must classify job tasks by exposure risk level (very high, high, medium, or lower).
• Infectious disease preparedness plans: Certain employers must develop written plans addressing how they will control and respond to workplace exposure to COVID-19.
• Engineering controls: For many jobs, employers must adapt air-handling systems, install barriers, and modify physical layouts to reduce transmission.
• Administrative controls: Measures such as prescreening employees, staggering shifts, enforcing physical distancing, and limiting non-employee access.
• Personal protective equipment (PPE): For higher-risk tasks, employers must provide respirators, gloves, gowns, and eye protection, and train employees on their use.

These rules operate alongside federal OSHA guidance on shelter-in-place procedures in certain circumstances, including training employees on emergency plans and ensuring safe indoor environments when sheltering at work is required.

4. Reasonable Accommodations and Health-Related Concerns

Employees with health conditions that heighten the risks of infection may be protected by federal disability law, particularly the Americans with Disabilities Act (ADA)reasonable accommodations to qualified employees with disabilities, unless doing so would cause undue hardship.

In a pandemic or similar emergency, possible accommodations include:

• Temporary telework where job duties can be performed remotely.
• Extended leave or schedule modifications to allow an employee to avoid peak exposure times.
• Reassignment to lower-risk tasks that reduce direct contact with others.

If an employer refuses to consider accommodations and instead insists that an employee with a serious health condition report to a high-risk environment, that decision may raise ADA concerns. A termination that follows an accommodation request can potentially support a claim of disability discrimination or failure to accommodate, depending on the circumstances and evidence.

5. Paid Leave, Flexible Work, and Emergency Protections

During the height of the COVID-19 pandemic, federal law temporarily expanded paid leave options through the Families First Coronavirus Response Act (FFCRA), which applied to many small and midsize employers between April 1 and December 31, 2020. While that law was time-limited, it illustrates an important point: during emergencies, additional protections may be layered onto existing state and federal employment rules.

Under Virginia’s COVID-19 emergency workplace standards, employers were encouraged or required to adopt flexible arrangements to reduce exposure, such as:

• Telecommuting and remote work where feasible.
• Staggered work shifts to minimize the number of employees on-site at one time.
• Remote delivery services and curbside operations to limit close contact with customers.
• Mandatory physical distancing and face coverings in situations of close contact.

Employees who are asked to work on-site may want to ask:

• Has the employer evaluated whether my job can be performed remotely?
• Have flexible schedules or staggered shifts been considered?
• What specific steps are being taken to ensure physical distancing and masking?

Documenting these conversations and the employer’s responses can be important if disputes later arise over safety practices or alleged retaliation.

6. Special Protection for Minor Employees

Virginia provides extra safeguards for workers under 18, reflecting a strong public policy against exposing minors to dangerous or exploitative work. State law limits the types of jobs minors may hold, the hours they may work, and the conditions under which they may be employed.

Key features of Virginia’s rules for teen workers include:

• Employment certificates and parental permission for most jobs held by 14- and 15-year-olds.
• Restrictions on hazardous occupations, including work in mines, quarries, and certain industrial settings.
• Limits on work hours, particularly during school sessions.
• Requirements for meal breaks after extended continuous work periods.

Virginia law also makes it unlawful to place a child in situations that endanger their life, health, or morals, or to overwork or cruelly treat them. Violations can be criminal offenses. During a pandemic, employers must consider whether assigning minors to tasks with significant exposure risk could run afoul of these protections. Parents and guardians should pay close attention to job duties and conditions and raise concerns if work appears unsafe.

7. Anti-Retaliation and Safety Complaints

Workers worried about infection control measures sometimes hesitate to speak up for fear of losing their jobs. Virginia’s emergency standards and general safety laws address this issue by including anti-retaliation protections.

Under Virginia guidance, employers may not discharge or otherwise discriminate against an employee because the employee raises reasonable concerns about workplace infection control, safety practices, or compliance with COVID-19 standards. This can include complaints made to:

• Supervisors or internal safety committees.
• Other employees.
• Government agencies responsible for labor or health enforcement.
• The public, including via media, if the concern relates to safety and health practices.

In addition, no person may discharge an employee for filing a safety or health complaint or otherwise exercising rights under Virginia safety and health provisions. Terminating an employee simply for raising safety concerns or reporting unsafe conditions can therefore trigger potential claims of unlawful retaliation.

8. Practical Steps for Employees Facing a Work Requirement

If you are instructed to report to work during a stay-at-home or shelter-in-place situation in Virginia, consider the following practical steps:

8.1 Review the Applicable Emergency Order

• Read the text of the Governor’s executive order to see whether your type of business is considered essential or subject to closure.
• Check for any specific conditions or safety protocols required for operations.
• Keep a copy of the order for your records.

8.2 Ask Your Employer About Safety Measures

• Request information about the employer’s COVID-19 risk assessment and preparedness plan.
• Ask which engineering, administrative, and PPE controls are being used to reduce exposure.
• Confirm procedures for screening, physical distancing, and handling suspected or confirmed cases in the workplace.

8.3 Consider Accommodation Options

• If you have a health condition, talk to your healthcare provider about your risk and possible work adjustments.
• Submit written accommodation requests where appropriate, including telework or reassignment.
• Document the employer’s responses and any decisions made.

8.4 Document Any Threats or Termination

• Keep written records of emails, texts, or messages directing you to work.
• Note dates and content of conversations about orders, safety measures, or refusal to work.
• If you are terminated, request written reasons for the decision.

Because Bowman and other wrongful termination claims depend heavily on specific facts, consulting an employment attorney early can help you evaluate whether your situation may support legal action.

9. Frequently Asked Questions

9.1 If my employer is considered essential, can I still refuse to work during a stay-at-home order?

If your employer lawfully operates as an essential business under the order, refusing to work simply because of the order may not be protected. However, if the workplace lacks required safety controls or you have a qualifying disability and need accommodations, other legal protections may apply.

9.2 Can I be fired for reporting unsafe COVID-19 practices?

Virginia’s emergency standards and safety laws prohibit employers from retaliating against employees for raising reasonable safety concerns or filing health and safety complaints. A termination closely following such complaints may support an anti-retaliation claim.

9.3 What if my employer orders me to ignore an executive order?

If an employer demands that you engage in conduct that would violate an executive order treated as law, and you are fired for refusing, you may be able to argue a wrongful termination claim grounded in Virginia public policy, similar to a Bowman claim. Whether such a claim succeeds depends on the language of the order and the specific facts.

9.4 Does any of this change because emergency standards were labeled temporary?

Emergency workplace standards were adopted as temporary measures, but they reflect how Virginia may treat employer obligations during future emergencies. Even when specific rules expire, the broader duty to provide a safe workplace and the prohibition on retaliating against safety complaints remain part of the legal landscape.

9.5 Are teen workers treated differently during a pandemic?

Yes. Virginia’s restrictions on hazardous work, limits on hours, and protections against endangering minors apply regardless of a pandemic. Placing a minor in high-exposure roles can raise serious legal concerns, and parents should carefully review job conditions.

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Author

medha deb

 

Medha Deb is an editor with a master's degree in Applied Linguistics from the University of Hyderabad. She believes that her qualification has helped her develop a deep understanding of language and its application in various contexts.

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