The COVID-19 pandemic has had a major effect on workplaces across the country, leaving many workers concerned about their rights. Certain employers, especially in areas of the country that were greatly affected by the virus, may be allowing or requiring employees to work from home.
However, for employees of businesses such as restaurants, factories, retail stores, and similar locations, remote work is not possible. Some businesses are requiring their employees to take paid or unpaid leave to fight the spread of the virus, especially if they have been exposed or the area has a high number of cases.
If an employer requires an employee to stay home from work or if that employee chooses to do so to protect their health, whether or not they are entitled to pay depends on several factors, including the employer’s policies and local state and federal laws. Employers are facing a new liability issue having to take precautions to protect employees from COVID-19.
- Change employee schedules so fewer employees are present;
- Permit remote work; and
- Request employees who show symptoms to remain at home.
The Occupational Safety and Health Administration (OSHA) has provided employers with reasonable steps that should be taken to prevent exposure to or the spreading of the virus at work. These include:
- Installing physical barriers;
- Not allowing access access to gathering areas and staggering shifts in order to lower the number of employees present;
- Providing or requiring personal protective equipment; and
- Requiring safety and health actions, including requiring employees to wear face coverings and wash their hands frequently.
An employee’s rights regarding COVID-19 issues in the workplace at this time are being handled in different ways by different states. For example, certain states have enacted laws which protect employers from civil lawsuits which are related to COVID-19. Most laws required the employer to show that they attempted in good faith to follow current public health guidelines regarding the virus.
However, the laws surrounding the virus are changing on a daily basis. In most cases, as long as an employer can demonstrate that they took the suggested precautions regarding the virus, they will not be held liable for injuries related to it. It is very important to seek the advice of an attorney regarding any employer liability issues with the virus.
Many employers are offering paid or unpaid leave beyond what is required by the Family Medical Leave Act (FMLA) and state laws. The FMLA provides eligible employees up to 12 weeks of unpaid leave for medical reasons while protecting their job.
Similarly, while federal laws do not require an employer to offer paid leave, many businesses offer several weeks of paid leave per year. Due to the pandemic, some employers are also providing additional paid leave for their employees.
If an employee is required to take time off due to COVID-19, their employer will likely require them to use any of their remaining paid leave prior to taking unpaid leave. The employee should consult their employee handbook or contact their human resources department if they have any questions regarding their employer’s policies.
In addition, the Families First Coronavirus Response Act (FFCRA) requires employers to provide paid sick leave for their employees. Now, employers are eligible for a tax credit if they provide additional paid leave to employees who have already used their 80 hours. This has been extended through September 2021, and may be further extended depending on the circumstances.
Pursuant to the FFCRA, a covered employer is required to provide a minimum number of hours of paid time off for a pandemic-related reason, which can include if an employee:
- Is subject to a government quarantine or isolation order;
- Is advised by a health care professional to self-quarantine;
- Is experiencing COVID-19 symptoms and is trying to get a medical diagnosis;
- Is caring for an individual who is subject to a government quarantine or isolation order or an individual who has been advised to self-quarantine by a health care professional; and
- Is caring for a son or daughter whose school or place of child care has closed or is unavailable due to the pandemic.
Can I Be Fired for Raising Safety Concerns Over COVID-19?
If an employee raised a safety concern regarding COVID-19 in the workplace, that is not grounds for legal termination. It is important to remember that most employers are at-will employers, which means that an employee can be terminated at any time and for any reason.
However, they are still prohibited from engaging in discrimination in the workplace. An employee may have grounds for a wrongful termination claim if they were terminated for bringing up a COVID-19 related concern in the workplace or refusing to comply with an employer policy which violated a government directive related to the virus. It is important to remember that the laws are constantly changing and it is best to seek assistance from an employment lawyer.
Does My Employer Have to Protect Me From COVID-19?
It is physically impossible for an employer to protect all employees from the COVID-19 virus. However, as noted above, there are required steps an employer should take in order to limit exposure or spread of the virus.
OSHA provides recommendations to help protect employees who are not vaccinated or are otherwise at-risk by using multiple layers of protection. These include:
- Keeping separate any individuals who are infected, are experiencing symptoms, or are not vaccinated and have been in close contact with someone with the virus;
- Having physical distancing;
- Maintaining ventilation systems; and
- Using protective face coverings or other personal protective equipment when appropriate.
Can I Be Forced to Work During Shelter-in-Place?
Most employers have established a work from home policy during the pandemic. An employee’s rights on this issue will vary depending on whether they are an independent contractor or an employee.
An independent contractor typically already works in a location other than the business, so that may remain the same for them. However, employees will likely see changes.
If the position of an employee was transitioned to a work-from-home position only during the pandemic, they will most likely be required to return to the office. Some employees may wish to work from home for a longer period of time to avoid contact with the virus.
Any laws related to disability and discrimination in the workplace, including the Americans with Disabilities Act (ADA), continue to apply during the COVID-19 pandemic. In some cases, an employer may need to provide reasonable accomodations for an employee whose disabilities puts them at a greater risk from COVID-19.
An employee who requests reduced contact with others may be accommodated by changing to the work environment in ways such as:
- One-way aisles;
- Tables; or
- Other barriers that ensure minimum distances between individuals.
As COVID-19 restrictions are slowly removed, employers will likely be seeking to have office employees return to the workplace. When they do so, the employer must ensure they are adhering to local, state, and federal guidelines.
This process of employees returning to the workplace will be new for both employers and their employees. If issues arise, it is important to seek help from an attorney who will be aware of any recent updates and changes to the laws regarding COVID-19.
What if My Rights Were Violated Due to a COVID-19 Issue?
If an individual believes their rights were violated due to a COVID-19 issue or a telecommuting issue related to COVID-19, they should contact an attorney as soon as possible. Even if an individual is working from home, if they are still an employee, they retain the same rights they have in the workplace.
As previously noted, the laws surrounding COVID-19 are constantly changing. That includes what legal remedies may be available surrounding COVID-19 issues at work.
Do I Need to Hire an Employment Lawyer?
Yes, it is essential to have the assistance of an employment lawyer for any workplace issues you may have related to COVID-19. As previously discussed, the laws are constantly changing and these issues are new for employers, employees, lawyers, and courts alike. Your attorney can review your case, determine if your rights were violated, and assist you in filing a claim in the right place.