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Employers: What You Should Be Prepared For With Employees Returning To Work - Q&A

My boss is calling me back to the office soon. I’m healthy, but I don’t feel safe and have been working from home just fine. Do I have to go back?

Fear is not a legal reason for refusing to work, but there is one exception. According to Angela Walker, an attorney who specializes in representing employees in Americans With Disabilities Act cases. If you have diagnosed mental-health disability, such as severe anxiety, and the pandemic is exacerbating that disability, you can ask to work from home as a reasonable accommodation under the ADA. Otherwise, you can make the case for continuing to work at home, but your boss is not obligated to allow it.


I have an underlying health condition. Can my employer force me to return to work?

The White House guidelines call for a three-phase return to work, with special accommodations for vulnerable individuals until the third phase, at which time policy envisions a return to “unrestricted staffing of worksites.” Under the guidelines, vulnerable people are the elderly and those “with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.”

Keep in mind these aren’t orders “There’s no enforcement power,” says Jennifer Merrigan Fay, an employment-law partner at Goodwin Procter LLP. So, if you have asthma, your employer can still call you back. “If you have a disability under the ADA, you’re better protected,” she says.


If I am pregnant, can my employer force me to go back to work?

Pregnant women are not identified as vulnerable workers in the White House guidelines. But some states, including Massachusetts, New York, and California, have laws that obligate employers to consider reasonable accommodations for pregnant employees, Fay says.


What should I do if my employer is not following Centers for Disease Control and Prevention guidelines for coronavirus-safe workplace?

First, bring up your concerns with your manager. If nothing changes, file a complaint with the occupational Safety and Health Administration, says Debbie Berkowitz, director of the Worker Health and Safety Program at the National Employment Law Project and a former OSHA chief of staff. You can opt to remain anonymous.

The CDC’s guidelines are recommendations, so employers can’t be sanctioned just for violating those. But OSHA can determine whether those employers are violating its general-duty clause. And the agency is required to follow up on complaints, so the employer will at least be put on notice that workers are upset and willing to act, says Berkowitz.


What can I do if my employer does not provide handwashing breaks or enforce social distancing?

Again, raise your concerns with your employer. If nothing changes, you may file an OSHA complaint. Workers also have protections to refuse to work if there is a reasonable expectation that workplace conditions could cause serious physical harm or death.

Collective employee action may also help, Berkowitz states. The National Labor Relations Act protects “concerted activity,” meaning if employees walk out together after exhausting their options, they cannot be retaliated against.


My employer follows safety guidelines, but I worry about exposure on my commute. What are my options?

If you can work from home, ask to do so. If you are considered a vulnerable individual or have an ADA-qualifying disability, you are more likely to get permission to do so. Otherwise, you could be required to come to work.

If working from home is not an option, you may be able to take unpaid leave, but there is no guarantee your job will be available when you feel it is safe to commute. Meanwhile, some employers are considering enhancing transportation benefits for employees, like reimbursing for car services, or offering parking benefits, says Lindsey Burke, co-chair of the employment practice at Covington & Burling, LLP.


Legal Protections

I was fired after telling my boss that the safety measures at work were insufficient. What can I do?

What your employer did is called retaliation and it is illegal, employment lawyers say. Whistleblower laws protect workers who raise concerns about workplace health and safety. Report the action within 30 days to OSHA and consider finding a lawyer to represent you.

If I get COVID-19 because of my job, am I eligible for workers’ compensation?

The rules on this are tricky and evolving, employment lawyers say. Generally speaking, having an infectious disease such as the flu hasn’t entitled workers to compensation because it is nearly impossible to determine where someone contracted the illness.

But the workers’ compensation system is run by states, and several governors and state legislatures have already come out with orders or bills granting eligibility for health care workers and first responders who fall ill with Covid-19. In some states, such as Illinois and Kentucky, the new rules apply to workers in grocery stores and some other essential businesses.

Can my employer ask me to waive my right to workers’ compensation?

No, employers can not ask me to waive the right to workers’ compensation. The law recognizes that workers and employers have unequal bargaining power, so workers can’t be required to sign this right, Burke says.

Am I eligible for workers’ compensation if I am an independent contractor who has contracted Covid-19?

Generally, no. If you think you have contracted the virus while at the jobsite, you could probably sue the company you were working for. Keep in mind, these are difficult cases to win in normal circumstances and Covid-19 presents the additional challenge of proving you were infected while at work.

I think I got Covid-19 at work. Can I sue my employer?

The worker’s compensation system protects employers from other legal claims pertaining to a work-related injury or illness. However, if employees believe their company was negligent – for example, by not providing personal protective equipment even if workers were regularly exposed to confirmed Covid-19 cases – there are situations and states where courts might open to such claims, says Burke.

Job Security & Pay

Am I entitled to hazard pay if my job puts me at risk of exposure to the virus?

Not under current law. Employers may offer hazard pay for people in high-risk jobs, but they are not obligated to do so.

If my employer asks for volunteers to return from furlough and I raise my hand, can my employer reject me? I am over 50 and have an underlying health condition.

If employers make decisions based on their perceptions of who is at higher risk, they are likely engaging in illegal discrimination.

“Employers might be motivated to pick the youngest and healthiest people

My employer has called me back to the office and schools are still closed. I’ve already used up my paid leave and the expanded leave and the expanded leave provisions in the Families First legislation. What do I do if I have no one to look after my kids?

Workers are in a difficult spot here, since schools and day care are a prerequisite for many people to go to work. You can ask for an unpaid leave of absence, but your employer isn’t obligated to offer that or to hold your job for you if you do take and leave, says Fay.

Privacy

Can my employer take my temperature at work?

Under normal circumstances, temperature screening would be considered a medical exam and would violate the ADA. But the U.S. Equal Employment Opportunity Commission has determined that, given the risks associated with Covid-19, temperature screening this is permissible, says Melissa Peters, special counsel at Littler, an employment labor law firm representing management.

Do I have to report coronavirus symptoms to my employer?

Yes. “If an employer asks you if you’re symptomatic, they can require that you report that,” as a workplace-safety matter, but only under pandemic conditions, says Fay. She recommends that employers require a simple daily health questionnaire, and that workers proactively report any symptoms. The information should be protected as confidential under the ADA.

Can my employer send me home if I am showing symptoms?

Yes. Your employer has a duty to protect all of the company’s employees. Employers are advised to send employees home as soon as possible if symptoms are being shown.

If a Covid-19 vaccine is developed, can my employer require I get it?

During a pandemic, employers can require vaccinations, the EEOC says. An employee may be entitled to an exemption if the vaccine would interfere with a medical condition or violate that person’s religious beliefs.


Source of Information: EEOC

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