While public health officials agree that the United States isn’t seeing a second wave — since the first wave never quite abated — there is no denying that the fall has brought a massive spike in COVID cases. While other countries renew lockdown orders, close businesses and otherwise prepare for the rise in infections predicted for the autumn and winter, the United States doesn’t seem interested in rolling any restrictions back. As a result, many Americans are expected to head into the office as usual, even as COVID cases reach an all-time high.
A distressing number of Americans aren’t concerned about the spike in infection rates, but fortunately, many more are interested in protecting themselves in any way they can. Here are the answers to a few legal concerns that many conscientious Americans are asking while returning to work amidst COVID-19.
I Don’t Want to Return to Work When Cases Are Spiking
The best way to catch and spread COVID-19 is to come into breathe the same air as a number of other people — which often happens in office spaces and other indoor workplaces. When COVID rates are high, a worker is much more likely to come into contact with someone who is asymptomatic (or worse, someone who has symptoms but doesn’t care that they might be infecting others). Thus, it makes perfect sense that workers might want to stay home, especially while cases are spiking.
Unfortunately, the United States doesn’t have many laws protecting workers’ rights, which means most workers have abysmally few choices when it comes to staying away from the workplace. If possible, workers should clock in from home, working remotely and avoiding contact with other people. Otherwise, barring a governor’s executive stay-at-home order, workers will need to rely on accrued PTO or take unpaid leave to stay out of the workplace when COVID rates are high. Regrettably, being nervous about coronavirus doesn’t provide legal protection against being let go, so workers can be fired for failure to show up to work.
My Employer is Demanding I Return to Work Despite My State’s Executive Orders
It is possible that the winter will bring renewed interest in statewide lockdowns and stay-at-home orders. Under executive orders, returning to work during COVID-19 is prohibited outside of certain essential fields; employers cannot legally demand their employees return to work, especially if valid remote options are available.
Workers have certain legal protections against workplaces that are in violation of state executive orders. For example, workers can inform their state of workplace violations, subjecting their employer to penalties and fines. In most states, employers cannot legally retaliate against such whistleblowers, meaning workers can stay safe from COVID and keep their jobs.
My Employer Is Making Workers Sign COVID-19 Liability Waivers
Any gathering of people indoors carries a risk of spreading COVID, and as workplaces reopen, many employers are realizing that they might be held responsible for compelling their workers to share air and thus become infected. In an effort to protect themselves from potential lawsuits, some employers are drafting liability waivers that release workers’ rights to sue the company should an outbreak of COVID occur in the workplace.
These waivers might seem threatening, but there is some good evidence that they won’t be enforceable. Already, a few states have signaled a willingness to include COVID-19 as a compensable occupational disease, which means if an employee contracts the disease in the workplace, they can recoup medical expenses and lost wages from their employer. What’s more, many states simply do not recognize any liability waivers from workplaces because of the unfair bargaining power that employers hold over employees. It might be wise to talk to an employment lawyer or review state compensation law before signing a liability waiver, just to be safe.
I Want My Employer to Supply PPE
Personal protective equipment (PPE) is the key to staying safe from COVID even amidst groups of people. The Occupational Safety and Health Act (OSHA) requires employers to reduce and eliminate workplace hazards, and whether that means supplying PPE depends on the type of employment. In other words, workers should be suitably protected from the risk of the disease as determined by the risk associated with their job.
For example, high-risk workplaces that are likely to put workers into contact with COVID — like hospitals or COVID labs — are required to provide N95 respirator facemasks fitted to workers faces, gloves, gowns and goggles. Medium-risk jobs that put workers in contact with the general public, like teachers, retail workers and bus drivers, might demand some combination of the above PPE; for instance, a cashier might have gloves and a plexiglass barrier but no respirator mask. Low-risk jobs that do not even require contact between co-workers might have no requirement for employer-supplied PPE at all.
Employees might ask their employers about the possibility of receiving PPE in the workplace. Considering the low cost of most PPE, even low-risk workplaces are likely to offer some degree of protection, like masks and hand sanitizer.
COVID provides an interesting break in legal precedent — which is causing many workers confusion and concern. As a general rule, employees shouldn’t hesitate to contact lawyers if they suspect employers of endangering their lives or skirting state or federal law, especially in these trying times.