With state and local governments allowing more businesses to re-open, employers and employees have questions about what they should — and shouldn’t — expect in the workplace. The state has issued guidelines for various types of business, but little has prepared most of us for navigating a return to work during a pandemic, when missteps could kill.
We contacted employment law experts and state authorities to help answer questions about the new rules, including everything from disclosing workplace cases to temperature screening. The answers were drawn from interviews with employment lawyer David Barron, Jim Brudney, a labor law professor at Fordham University in New York City, and California agencies.
Q: If an employer opens the workplace, in line with public health orders, and a worker doesn’t feel safe to return, do they have to?
Brudney: When an employer tells you you need to come back to work and you don’t feel comfortable working from the office, in general the employer doesn’t need to keep you. (But) California is ahead of the curve in terms of its laws. California labor code says that you have a right to refuse unsafe work, but the question of whether your generalized fears amount to unsafe work, that’s unlikely. There has to be some objective reason. If an employer said, “I don’t want you wearing masks” … that might give you grounds.
Q: What does an employer have to tell workers if there are coronavirus cases in the workplace?
Barron: OSHA (the U.S. Occupational Safety and Health Administration) recommends that if an employee has been potentially exposed in the workplace that they be notified. What does exposed mean? If you’re in a complex with 50 buildings and it’s somebody 17 buildings over, you’re probably not exposed. Most employers are … trying to find out who’s been in close contact with this employee and they’re providing just a general notice that, “You may have been exposed in the workplace.” What you want as an employer is to identify people quickly, exclude them from the workplace, identify other people they’ve been in contact with, exclude them from the workplace, so you don’t have to have a continuing growing problem.
California Department of Industrial Relations: If an employee is confirmed to have Covid-19, inform employees of their possible exposure to Covid-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act. Temporarily close the general area where the infected employee worked until cleaning is completed. Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including break rooms, restrooms and travel areas.
Q: If a worker is sick, does he or she have to tell their employer?
Barron: Most employers have implemented policies that require that. If the employee lied that could be a problem. In terms of the fear of reporting, that’s why we have the “Families First” federal law (in the U.S. Coronavirus Response Act) that creates the two weeks of employee sick days.
Q: Can a worker claim unemployment benefits if the government says it’s safe to return to the workplace but the worker doesn’t feel safe to return?
Barron: There could be reasons a person would be able to refuse a lawful recall order and still be eligible for unemployment. If they’re sick, they don’t have to come back to work, (or) if they’re older or disabled and would be under a stay-at-home order or the advice of a doctor.
California Labor and Workforce Development Agency: Unemployment Insurance (coverage applies) if you have lost your job or have had your hours reduced for reasons related to COVID-19.
Q: Can employers require employees to have their temperatures checked before they enter workplaces?
Barron: That’s a hot topic. The general answer is, “Yeah, employers can do it.”
Q: Could an employer require workers to get a coronavirus vaccine if one is developed?
Barron: That’s going to be uncharted territory. Most employers are not going to want to pick the legal fight over requiring it, but they will take the route of bonuses or some type of incentive. There’s precedent in the health care field to require it. We just don’t have any legal precedent for it on a mass scale. Maybe there will be a new law.
Q: What happens if an employer doesn’t enforce proper social distancing or add infrastructure to create a workplace environment that protects against coronavirus infection?
Brudney: If employers are trying to work with their workforce and accommodate the new reality of new structural conditions, I would think and hope that workers would feel less anxious. If you’re a bus driver … you need some serious protection. We’re in a new normal here. This is not going to be like workplaces used to be and if employers don’t make adjustments with an eye toward relieving the understandable anxiety that their workers feel, they may be able to fire a few people but they’re going to have a huge problem with the people who want to work there and with the adverse public relations impact. (In the Bay Area, violating county public health orders — such as requirements for social distancing and masks in workplaces — is a misdemeanor punishable by fine, imprisonment or both.)
Department of Industrial Relations: California employers are required to establish and implement an Injury and Illness Prevention Program to protect employees from workplace hazards, including infectious diseases. Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement infection control measures, including applicable and relevant recommendations from the Centers for Disease Control and Prevention.
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Author: Ethan Baron