As state and local governments across the country debate the merits of America’s grand reopening, employees continue to express concern over whether returning to their place of employment will subject them to heightened risk of contracting Coronavirus and either becoming seriously ill or spreading the disease to their families.
While many companies have been accommodating in allowing and even encouraging employees to work from home even after they are given the green light by government to return to the office, others have not. So can you refuse to return to work because of COVID-19? It is one of the most common questions we’ve been asked in recent weeks, and in this post we’ll provide you with answers.
If you’re short for time, here’s a quick navigation through the information.
- The Global and Governmental Response to the COVID-19 Pandemic
- What Can I Do If I Do Not Feel Safe Returning To Work?
- Cal/OSHA COVID-19 Guidelines
- Video: The Life or Death Question
- Federal Protections for Workers
- Low and Medium Exposure Risk
- High Exposure Risk Employees
- Can I Be Retaliated Against for Being Sick or Taking Care of a Family Member?
- The Families First Coronavirus Response Act
- Consult With Your Lawyer If You Feel Your Workplace Is Unsafe To Return To
The Global and Governmental Response to the COVID-19 Pandemic
While many of us began hearing about the novel coronavirus in Wuhan, China, at the beginning of January, for the purposes of our analysis the first important date was January 31, 2020. On that date, the Secretary of Health and Human Services Alex Azar declared a public health emergency due to a serious viral illness transmitted person-to-person “via respiratory droplets produced when a person coughs or sneezes.” At the same time, the US restricted all travel from China.
Following the declaration of a global pandemic by the WHO on March 11 and a national emergency by President Trump on March 13, many states followed the lead of the San Francisco Bay Area in issuing so-called “shelter in place” orders that shuttered all non-essential businesses.
Since that time, millions of Americans have been laid off, furloughed, or otherwise lost their jobs and income. By the middle of April, it was estimated that half of LA County was unemployed.
What Can I Do If I Do Not Feel Safe Returning To Work?
In this climate of uncertainty, where federal, state and local government and even medical science seem to be on shaky ground in dealing with the fallout from the pandemic, it is more important than ever that employees understand their rights so they can make informed decisions about when and whether they must return to jobsites and offices throughout Los Angeles.
Clearly, if you have been diagnosed with the coronavirus, are feeling ill, or are in a high-risk category, you should not go to work until you have received clearance from a medical professional and your employer. If, on the other hand, you are simply feeling uneasy about returning to work, you should know that new California regulations will force employers to implement safeguards to protect you from infection.
Cal/OSHA COVID-19 Guidelines
On May 14, 2020, California’s Division of Occupational Safety and Health (Cal/OSHA) issued guidelines on what employers must do to protect employees from the novel coronavirus.
All employers must maintain an Injury and Illness Prevention Program (IIPP) to protect employees from workplace hazards like COVID-19. Given the nature of the current pandemic, COVID-19 is considered a foreseeable workplace hazard.
As a consequence, it is now mandatory for most employers to implement infection control measures to reduce the risk of employees getting ill at work. Failure to do so may be grounds for an employee to take a leave of absence while the issue is investigated.
There are a number of programs that California state and local governments have enacted to protect the income of workers who are sick, high-risk, or are caring for a loved one. Visit this list of resources at the CA Department of Labor website for more details.
Federal Protections for Workers
Low and Medium Exposure Risk
The Occupational Safety and Health Act is the governing federal law on the question of when you, as an employee, can refuse to go to work. In general, you can refuse when:
- You have asked your employer to eliminate a hazard in the workplace but they have either refused to do so or failed to do so;
- You have a “good faith” belief that an “imminent danger” exists at your place of work;
- A “reasonable person” would agree that death or serious injury is a real possibility, and
- There is no time for your employer to correct the hazard and have the remediation verified through the appropriate channels.
This leaves a lot of room for argument and interpretation, it’s true, but fortunately OSHA has provided employers with new guidance on what they must do to ensure a safe working environment. Those steps include:
- Assessing the risk of infection for employees on an individual basis;
- Provide training and enforcement of workplace sanitation and hygiene rules such as handwashing, use of hand sanitizer and appropriate social distancing;
- Providing you with personal protective equipment (PPE) like masks, face shields, gloves and gowns;
- Implementation of stronger administrative and engineering controls to help prevent contact between you and your coworkers that could spread the virus.
High Exposure Risk Employees
The Americans with Disabilities Act and California’s own Disabled Persons Act provide strong protections for workers with disabilities. If you have a known disability and it puts you at greater risk of contracting COVID or even if your disability is exacerbated by fear of contracting coronavirus, your employer may be required to offer you an accommodation, such as the ability to work from home.
The Families First Coronavirus Response Act
The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020. This law contained some important protections for workers like you who are concerned about getting sick when you return to work.
Under the FFCRA, if you have been advised by your doctor to self-quarantine due to the coronavirus, you will be provided with leave until such time as your doctor says you can return to work. This is especially true if you are, for whatever reason, especially susceptible to the coronavirus.
If remote work is possible, you may be entitled to an accommodation in order to work from home. If working remotely is not possible, then you would be entitled to FFCRA sick leave and possible further leave from the ADA if it does not place an undue burden on your employer.
Can I Be Retaliated Against for Being Sick or Taking Care of a Family Member?
As a California employee, you have both state and federal protections that strictly prohibit retaliation, in any form, for caring for yourself or loved one. With the massive uncertainty many businesses face, they may not be equipped to address or fully understand these complex and evolving requirements.
Remember, though, that you have employee rights to protect you from danger, harassment, discrimination, and other workplace violations.
Consult With Your Lawyer If You Feel Your Workplace Is Unsafe To Return To
If you refuse to return to work because you are afraid of contracting the coronavirus, you need a lawyer who can walk you through the consequences of your actions in order to ensure you make the right choice. This kind of case and analysis are complex and require experienced employment and ADA attorneys to counsel you on the best course of action. Contact us today to learn how we can help.