Can You Be Fired for Not Returning to the Office?

a permit. There have been four nights of protests over the shooting, which was captured on videotape. The city's former police chief says Potter mistakenly fired her handgun when she meant to use her taser. Both the chief and Potter resigned on Tuesday. Wright's family members and black community leaders are calling for more serious charges. Nikima Levy Armstrong, a civil rights lawyer and activist in Minneapolis, says Potter should be held to a higher stand undered. Kim Potter is

a twenty six year veteran. The fact that she was a field training officer and she should have known better um in terms of distinguishing between a taser and a gun. I do not believe that it was an accident. Joining me as former federal prosecutor Eli Hoenig, what's your reaction to the filing of the charges so quickly? Everything is

moving very very quickly with this case. The first of all, the police released the body camera within twenty four hours of the incident, which is faster than I've ever seen body camera footage released. I think that was a good and necessary step. Then they brought the charge just days later. The initial charge right now is a manslaughter charge under Minnesota law. It essentially charges what we call culpable negligence,

meaning that the officer created a grossly unreasonable risk. Not that the officer intended necessarily to kill Mr. Wright, but that she created a grossly unreasonable risk. So that'll be an interesting question for the jury. Is there any possibility that that the prosecutors may add charges as time goes on?

That absolutely is a possibility. Prosecutors frequently, especially in a high profile case, or whether there's some need or impetus to make an arrest quickly, will charge the most readily provable, sort of most easily provable, lowest charge just to get a charge on the books to make an arrest, and then as the investigation progresses, prosecutors not uncommonly will add charges or upgrade charges, or in some instances downgrade or

even dismiss charges as the evidence dictates. And just as one example, this was done essentially with Derek Chulfin and the George Floyd case. He was initially charged with actually the same manslaughter charge that not charged against this officer, as well as a third degree murder charge, and then later prosecutors added a higher charge, a second degree murder charge.

So that's quite common. Does it seem though, that this charge is the appropriate one here, because looking at the footage, it seems like, however reckless it was, it was a mistake, it was an intentional on her part. So this is why I think this charge is appropriate. At the moment, an act can be both accidental and negligent. So, for example, if somebody were to get behind the wheel of a car while severely impaired and then God forbid, hit a person and kill that person, that would be an accident.

The driver didn't didn't intend to hit until somebody, But it also would be culpable negligence. It would be manslaughter because by getting behind the wheel with a severe impair in severely impaired condition, you are creating and undo a gross unreasonable risk. So there is room in the law to charge somebody with a crime, even if it's an accident, if that person also acted grossly negligently. This is such a high profile case, but in other circumstances it seems

like it would be a good case for a plea deal. Look, the vast majority of cases do end up pleading guilty. This case could be different, however, because the stakes are so high for both sides. I mean, on the one hand, there's a lot of value I think from the prosecutor's perspective in getting a guilty plea, because you lock in

the conviction, you get the person to admit guilt. On the other hand, for the former police officer who has been charged, if she gets convicted, she's looking it up to ten years in prison, and if she sees a way to sort of cut her risk and take a plea deal and maybe limit herself to a much shorter time in prison, I think she'll have to think hard about that. There's been some reporting that Derek Chauvin tried to get a plea deal. Do you have any information

about that. Well, I've seen what's been reported publicly that he was interested in pleading guilty to a ten year charge. But then William Barr, who at the time was Attorney General of the United States, said no. And for anyone wondering why would Bill barb be involved in this, this is a state charge because any defendant in that position is only going to take the charge if he knows that he won't be charged by anybody else, because the

Feds still can charge Derek Schauvin. And so, in a of words, as a practical matter, the Chauvin and his lawyer would say, look, we're not taking a plea unless the state of Minnesota signs off and d o J signs off, because I don't want to plead guilty in Minnesota and then get hit with a new charge by defense. And so Bill Barr said no. Uh. And I think he probably made the right decision there, because I think ten years would have probably been widely perceived as as

not justice, not not sufficient for Derek Chauvin. Coming up next on the Bloomberg Law Show, I'll continue this conversation with former federal prosecutor Elie Honig, and we'll take a look at the Derek Chauvin murder trial. The defense wrapped up its case today without putting Derek Chauvin on the stand. So how did the defense do? Were they able to score any points? Not? Well, I don't think the defense

has done spectacularly well in any sense. First of all, we all we have to keep in mind no defendant ever has any burden of proof whatsoever. Defendants can put on no case at all and just say the prosecution hasn't met its burden of proof beyond a reasonable doubt. That actually happens. I have done trials where the defendant has said, no case, your honor, We're just going to argue they haven't proven it. So every defendant has the right to do that. That said, Chauvin has decided to

try to put on a fairly robust case here. I just am not persuaded by the witnesses. I don't believe the jury will be either. You had the medical witness who testified essentially that George Floyd's death was caused by everything but Derek Chauvin up to an including carbon monoxide, which, when cross examined, he revealed he had no data, no science, no facts behind whatsoever other than the fact that George Floyd was down by a car which we don't even know if it was running. So I don't think the

defense experts have been remarkably persuasive. But again, remember it's not an athletic event where you asked who has more points. All the defense has to do here is create reasonable doubt. Just didn't live up to the battles of the experts that I've seen in a lot of trials. I mean, is there a reason why it seems as if the

prosecution's experts were much more qualified than the defense. Well, typically a case being high profile, I would just think logically would would attract more attention, right because experts would want to be seen and say, look at me, I testified in this famous trial that you've all heard of, So hire me in the future. If I had to guess, I would say a lot of it is probably just

the merits of the case. I think it's hard to find a police officer, for example, who will come in and say I found Derek Chovin's use of force to be appropriate and necessary like that one witness broad who was his last name? Did I thought that was very dubious testimony. I think it's much much easier based on the many police officers I know personally, they all think that this was an unreasonable use of force. So I

think it's it's largely a function of the fact. And one thing that's important to remember, June, expert witnesses are not magic. The jury will be told specifically, you are not to give an expert witness anymore or less credibility or credence than you would to any other way. Is simply because they're experts. It's just a label we put on them that allows them to give their opinion. But you can and must evaluate their testimony. Is it reasonable, is it logical? Is it supported by the facts as

you would any other witness. So although these witnesses have the label expert on them, the jury is still free to disregard them. Considering the resources of the that the prosecution has put into the case and the resources that the defense has. But it seems like the prosecution has just overwhelmed the defense with the number of attorneys, the

preparation of the witnesses, etcetera. Well, I agree the prosecution has put on more and better evidence than than the defense, keeping in mind that the prosecution fares that burden of proof beyond a reasonable doubt. UM. I do think it's actually interesting the numbers game here, the four prosecutors versus the one defense lawyer. I actually don't love that dynamic

for prosecutors. When I was a prosecutor, we were always wary of looking like we were overdoing it on a case, and we never put more than three prosecutors on a case. And only the biggest cases, I mean, your major organized crime or terrorism cases would even have three. Typically you have two prosecutors because we didn't want to look like, well, why is half the office here doing this case. And I think it's also an interesting strategy by the defense

to only have one lawyer. We've only seen Eric Nelson stand up for the defense. It looks like he has an aid or somebody there in the courtroom, but that sort of paints the picture of a man alone, you know, sort of nobly defending his charge. That said, I think we're talking about sort of your courtroom dynamic more than anything else. UM. One thing that we don't know that it would be interesting to me is what kind of

resources does Derek Chauven have here? A lot of times police officers and former police officers are able to use money from unions even if they're out of the union. Now, um, it's not clear who's paying Eric Nelson's bill. It's not clear who's willing to work for free. Some of the prosecution witnesses the experts that they had volunteered to work for free because they felt strongly about this case. So I do agree though there's been a mismatch in both

the quantity and quality of evidence. But again, remember it's not who has more and better evidence, it has the prosecution met its burdened beyond a reasonable doubt. Something that I found extraordinary is the testimony of George Floyd's brother in what's called this spark of life, which allows the prosecution to give life and dimension to the victim, something that you don't normally see in most cases until it's time for sentencing. That was very unusual testimony because most

courts in the country would not allow it. Minnesota has this UNI or I don't know if they're the only state, but Minnesota has this unusual law statute, this spark of Life statute, which actually was passed decades ago UM in relation to a case involving a murder of a police officer, and the legislature decided that in case in murder cases, the jury should get to hear from a relative of the victim to humanize the victim. But in most jurisdictions,

including federal courts, that would never be admissible because it's sympathy. Uh, it's it's it's an emotional appeal, but it has no relevance to the disputed fact. I mean, what what George Floyd's brother remembers about him, and how fond but he remembers him, and how much he loved him has no, strictly speaking, no logical connection to whether Derek Chauvin's acts constituted murder or not. But this is a law on the books in Minnesota, and I thought the prosecution used

it effectively without overdoing it. I thought they were smart to call the brother felonis um because he was emotional, but he he wasn't over the top. And I think you want to be wary there as the prosecutor, of appearing too overtly to try to play on emotions, because ultimately emotion matters. But most juries, when it comes down to it, are looking pretty closely at the facts, and I think attempts to bring too much emotion into play

ten ten backfire. So there was some speculation that Derek Chauvin might take the stand and considering that the defense has not been going as well as some might have fought, but he decided not to. Think there was a wise decision. I do defendants very rarely take the stand in their own trials. I know in movies and TV we always see that dramatic moment when the defendant takes the stand

and has to defend himself against the prosecutor. But reality is, defendants rarely do take the stand because it's so so risky. I guess the only argument in favor of Chauvin taking the stand here is well, perhaps if he got one juror who liked him or felt sorry for him, that juror would decide uh not to vote guilty, and that could result in a hung jury. Remember, a jury verdict has to be unanimous to all the zero to convict

or quit. Anything in between is a deadlock, hung jury and a mistrial, which is as a practical matter, he win for the defense. So that would be the sort of hail merry nature of this, But it would have been so risky for him to take the stand. I mean, the prosecution likely would have been able to cross examine

him on prior complaints against him for force. Uh. They certainly would have played that video for him, And it would have been devastating to have to, you know, make him watch that video after George Floyd has stopped speaking and stopped moving, and so you're still on him here right. You know, you hadn't heard him speak in a minute, you hadn't heard him speak in two minutes, and you kept that knee on on his neck. It would have

just been a stating class examination. I think it would have been too risky, and I think it was probably the prudent move for him not to testify. Thanks Ellie. That's former federal prosecutor Ellie Honig. After successfully transitioning to remote work for more than a year, many businesses are rethinking the future of a fully in person workforce. Twitter and Microsoft are among the tech companies that have said some employees can continue to work from remote locations permanently

even after the pandemic is controlled. But suppose your employer insist that you return to the office full time, what are your options joining me as Michael Schmidt, Vice chair of the Labor and Employment Practice at Coson O'Connor. The overarching question is whether an employer can force employees to go back to work after they've been working from home

due to COVID. So the general answer to that is whether you're asking about simple return to work or if you are asking about whether an employer can require that an employee be vaccinated before returning to work, the overarching answer is really the same employers at the moment are able to require employees to return to work subject to obligations to accommodate both disability issues as well as sincerely held religious objections to coming back to the offers or

or getting vaccinated as a condition to coming back to the office. So, as far as disabilities are you referring to disabilities under the Americans with Disabilities Act or other disabilities that may arise because of COVID. The important thing to take away is that we're not just talking about

federal law. Part of the issue is, and what makes this somewhat complicated like other areas of employment law, is that this area is so dependent on state and local law as wealth you're looking at the Americans with Disabilities Act on the federal level certainly, but you're also in states like New York or California and other states that have their own statutory schemes dealing with reasonable accommodation requirements

and disability discrimination protection. So if somebody has a particular medical condition, physical or mental that for some reason precludes them from going into the office, or in case of a vaccine, precludes them from becoming vaccinated at the time. Suppose someone's a senior citizen and doesn't want to return to the office because of fears that they're more vulnerable

to COVID. Would that require some kind of accommodation. Well, that's where it gets a little tricky, because you need to distinguish those who have a covered disability, a covered medical condition versus those who just have generalized fears about leaving the home or generalized fears about going to the workplace. Is simply because they have this generalized fear, or simply because they may be part of a group, uh such

as of a certain age or a certain vulnerability. So you know, part of the difficulty is having to distinguish between those buckets and for those people who don't have a covered disability that entitles them to potentially an accommodation. UH. Employees are not able to necessarily just say well, I'm uncomfortable or have a generalized fear that something might happen UH and therefore be protected from UH from from complying with a rule that they need to come back to

the office. Suppose they believe that their workplace is not safe, that the workplace is not taking enough for cautions against COVID, Well, certainly we're gonna see a lot of that. Um. You know, they're gonna be a lot of employees who either return to the office or don't return to the office. And based on what they see or hear or understand, they're gonna be raising issues regarding protocols and safety. People may not be wearing masks, or the company is not enforcing

social distancing requirements or other protocols UH. So much of this is about balancing UH, communication and the psychology of all this. It's not just about what is the law technically require one side to do or not do. There is a psychology that comes along with the workforce that employers need to accept, and there also has to be some understanding that employees those uncomfortable or not are gonna be raising issues like you just mentioned, and has to

be a means for addressing them, for taking them seriously. UH. And that's what employers should do. They should have an avenue for people to raise concerns or raise complaints about

protocols and other safety issues. At the end of the day, if the employer does look into those issues and does follow best practices and available guidance, and again, it just becomes a situation where the employee is saying, I'm just not come sorta will come into the workplace, I'm just not comfortable leaving the home and working UM and no accommodation is needed and there really is no UM particular protocol or issue that is challenging the safety and health

of the workplace. UM, the employee may not be protected in those situations. What about the employee reporting the conditions to OSHA, that's certainly another avenue. UH. It's all about communication. I find that many issues can be addressed and resolved

between employer and employee. But there's no question that there are government agencies out there, including OSHA, who are there to receive complaints that employees may have about unsafe workplace conditions, UH, And that's certainly an opportunity for employees to raise it externally if that's what they want to do, in which case, you know, OSHA or whatever the federal or state agency UH will be will likely contact the employer and do

its own and investigation into the issue. Suppose an employer fires an employee because they won't return to the workplace. Are they entitled to unemployment? I know that President Biden said something about this. Are they entitled to unemployment or

there's certain parameters. Well, that's the unemployment issue. Notwithstanding the discussion on the federal level, the unemployment issue is also very much a state by state concerns, So UH the rules will vary depending on the particular state you're in

in the state unemployment scheme you're talking about. But from a general rule standpoint, as we know, typically if somebody resigns and resigns without reason uh refuses to work, UM, they're not going to be entitled necessarily to unemployment insurance.

But what many jurisdictions are doing, and what the federal government is talking about doing is making an exception there if the reason that you are not coming back to work is due to a good faith belief, good faith objective belief UH that there is something about the workplace you're being asked to return to that is not safe and is not healthy for you to do so. In those cases, if you refuse to return to that kind of workplace UH, in many situations, you will not be

denied the opportunity to obtain unemployment insurance. Going back to vaccinations which you mentioned, Let's say an employer says all employees have to be vaccinated before returning to work. If an employee has a religious objection, what happens The e o C, which is a federal government agency that handles disability related UH Title seven related issues and accommodations. The e o C put out guidances past December on this very issue mandatory vaccine policies and putting aside the disability

issue we just talked about. If an employee has a sincerely held religious belief or practice that prevents them from being vaccinated, the employer is required to engage in in an interactive process to see if an accommodation and be given without there being an undue hardship or without there being a direct threat by not being vaccinated. This is

very much an individualized assessment. An employer should not be simply knee jerk in its reaction to that kind of objection being raised, which also means that they can't just automatically fire them or discipline them for refusing to be vaccinated. They'll have to go through this process of well, what's the nature of the position. Can the position continue to be worked at remotely? Um? What are the essential functions

of the job. So the bottom line is there needs to be an interactive process in response to any religious objection being raised, and only after that process is exhausted UH and the the appropriate boxes are checked by the company, can an employer perhaps discipline up to an including termination. UH terminate an employee based on a religious objection to getting vaccinated. Suppose it's not a religious objection. Suppose an employee just has a generalized objection to vaccinations. Do they

also have to be treated in the same way? Well, very much the same answer as with the disability issues. And I can tell you there is this lingering issue out there that a lot of people are necessarily talking about, and that has to do with the whole emergency use authorization process that these vaccines were approved by the FDA in the first place, and as part of that process, the f d A rules suggests that recipients of a vaccine UH must be told that they have the right

to refuse to get a vaccine. So there are a lot of us out here that are waiting for additional guidance from the appropriate government entities as to the relationship between those f DA rules and an employer's ability to have a mandatory vaccine policy or engage in certain workplace rules.

But putting that issue aside to your specific question, it's very much the same as a disability context if someone just has a generalized objection there against vaccines, or too early in the process where I'm not that comfortable to get vaccinated just yet. Those are not concerns that are typically protected by law that have to be accommodated at the moment. Have you been getting a lot of inquiries from employers during COVID about problems they're having management issues

with people working from home? I have, and and this is certainly the time where a lot of companies are thinking about the types of questions that you're asking thinking about.

You know, we'd love to get to a place in the world where we can come back to whatever normalcy there was pre pandemic and start to get some of the benefits that we had by having in person interaction and team meetings and mentorships UH physically in the office, while recognizing, as I said before, there still is this psychology lag where people are not completely comfortable UH returning to the office just yet, are not completely comfortable getting

vaccinated yet, so they're trying to figure out should they have any type of mandatory return to work or mandatory vaccine policy, and if so, when they should do it. UM. I think most of the employers that I've been speaking with are leaning toward promoting the benefits of vaccination, perhaps in many cases creating appropriate incentive programs to have employees

get vaccinated. UM. But I still think as we're here in April of one, I think fewer employers are yet going the root of UH imposing a mandatory return to

work and a mandatory vaccine policy right now. I think the biggest issue again is is sort of you know, the this balancing act and recognizing that it's not all illegal, that there is you know, a lot of practical and a lot of psychological impacts that that are at play here and at at the end of the day, if you're going to be mandating any of these things, whether it's returning to the physical office getting vaccinated, you do have to keep in mind the requirements for accommodating disability

and religious objections. Thanks Mike. That's Michael Schmidt of Cozon O'Connor and that's it for the edition of the Bloomberg Lawn Show. Remember you can always at the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso and you're listening to Bloomberg