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Employee’s Rights During the COVID-19 Pandemic

Employee’s Rights During the COVID-19 Pandemic

Written by Brian Kabateck

April 2020

The COVID-19 pandemic has forced millions of Americans to shelter-at-home as the number of those infected reaches nearly 375,000 in the U.S. and 1.4 million confirmed cases worldwide. Governor Gavin Newson ordered all individuals living in the State of California to stay at home except for essential purposes to flatten the curve to prevent the over-saturation of hospitals.

The crisis has had a huge impact on the economy, with CNBC reporting that 10 million jobs have been lost after hotels, bars, salons, gyms, malls and other businesses closed. Major companies such as Disney, Macy’s, and Gap announced they had to furlough the majority of their employees and other small businesses had no other option but to close their doors for good.

Workers who are in need or are forced to work in dangerous conditions with people who may be infected with the coronavirus are protesting. Whole Foods employees organized a national protest demanding that the grocery store give employees double their normal wages as “hazard pay” for working on the frontlines during a pandemic. Amazon’s crisis response has been criticized after cases were confirmed in more than a dozen warehouses, and employees protested over the lack of adequate protective gear over a fear of falling ill. After workers for Instacart, one of the most popular grocery delivery apps, protested how the company was handling their safety during the pandemic, the company announced they were providing its full-service shoppers with health safety kits to stop the spread.

The Wall Street Journal reported that unemployment claims hit a record 6.6 million as layoffs continued for a second week straight, revealing more economic strain since the start of the coronavirus pandemic. In less than a month, workers around the nation had their world turned upside down, and face uncertainty during these trying times. If you’re a worker who has been impacted by the coronavirus outbreak, you may be left wondering what the next step is.

Here are some answers to some of the most common questions you may have:

Q: Can your employer force you to go to work?

A: The answer would depend on the circumstances and the job that you have. With the current stay-at-home order, only those employees in an essential workforce are allowed to leave their houses for work. Federal guidelines allow state and local authorities to decide which businesses are essential during crises. One circumstance in which an employer cannot force you to work is if there is evidence of contamination in the workplace, or if you have been in close contact with someone who has tested positive to COVID-19. Without good reason, employers can insist their employees continue working.

Q: Can you be fired or disciplined if you refuse to work?

A:  As cases continue to spread across the nation, many who work in essential workplaces fear contracting the virus while interacting with coworkers or customers, and are refusing to show up for work. Depending on the type of job, some employees can work remotely, but some jobs still require them to show up. If an employee doesn’t have a legitimate reason to not come to work and still refuses to show up, employers have the right to discipline an employee. If nobody in the workplace is known to have been exposed and appropriate measures have been taken, an employer can require them to show up to work or risk having their hours cut or be terminated.

Q: Are you legally required to tell others if you test positive for COVID-19?

A: According to the Center for Disease Control and Prevention (CDC), health departments are asking every person infected with COVID-19 to list all the people they have been in close contact with. If you recently tested positive, it’s a good idea to also identify all of the people from your workplace that you were in contact with in the last two weeks and let your boss know. Employers may decide to professionally clean and sanitize the office and may require their employees to get tested or go into self-quarantine. Some people might be afraid to disclose that they are sick due to fears of losing their jobs, but they have the moral responsibility to be transparent and inform those around us to stop the spread of the disease.

Q: Can employers tell employees with symptoms to stay home?

A: If employees start showing symptoms such as a cough, fever, shortness of breath or other cold or flu-like symptoms, employers have the right to ask them to stay at home and not risk exposing other people in the workplace. The company may ask you to work remotely if you are in self-quarantine, and the unfortunate circumstance that the employee becomes ill, they may be entitled to utilize accrued, unused vacation/paid time off (PTO) and paid sick leave during their time off.

President Donald Trump recently signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus. The act gives all American businesses with fewer than 500 employees funds to provide employees with paid leave, either for the employee’s own health needs or to care for family members. With careful attention to employee safety and legal preparedness, employers can minimize employees’ risk of infection and their own legal risk. Companies need to continue having great communication, remain transparent and consider and protect the rights of their employees during this difficult time.

Q: If a healthcare worker complains about working conditions to the press or on social media, can they be fired?

A: If a healthcare worker is terminated because she raised concerns about inadequate PPE or COVID-19 exposure, she may have a wrongful discharge claim. How an employee communicates a complaint about the lack of PPE will play an important role in the level of legal protections.  For example, many employers have policies restricting workplace-related social media posts.  However, exercising such free speech rights might be protected under the National Labor Relations Act.

California has created the Pandemic Unemployment Assistance Program which is brand new. The EDD is working to set up this new program to serve unemployed Californians who don’t usually qualify for benefits, including self-employed individuals. For now, Californians are instructed to follow the current instructions on the EDD website regarding potential unemployment benefits. However, the program is new and is still being set up. More details are expected to come in the upcoming days.