Many states are now beginning to reopen businesses that were shut down due to the COVID-19 pandemic. People resuming work will understandably question the safety of this decision for themselves as well as their colleagues.
It is vital for businesses to follow the guideline issued by the CDC on increasing ventilation, disinfecting surfaces, and creating physical distance between employees. However, many employees believe that their organization is not ensuring their safety, demonstrated by worker walkouts at meat plants, Amazon, and Instacart over inadequate safety measures.
According to over 3,000 complaints filed to the Occupational Safety and Health Administration between January and early April, employees of call centers, grocery stores, spas, airlines, and pharmacies have alleged that their workplaces are unhygienic and that they have been made to work with individuals who seem ill.
What are your options if you feel that you have been exposed or are at risk of contracting COVID-19 from someone at your workplace? What are the obligations of your employer in this case?
According to legal experts, there are recommendations on what companies should undertake to ensure the safety of their employees from coronavirus. However, the law does not necessarily require employers to take any of these measures.
What organizations should do with COVID-19 cases differs from what they are obligated to do
In case you work closely with an individual who contracts coronavirus, your boss is required to inform you that you may have been exposed to COVID-19.
The Centers for Disease Control and Prevention elaborates in its guidance for companies and employers that if a worker is confirmed to be affected with coronavirus infection, the employer should apprise co-workers of their potential exposure to coronavirus in the workplace. However, they should maintain confidentiality as necessitated by the Americans with Disabilities Act.
This means that they should not tell you precisely who has contracted the infection, but you should be made aware of the risk. In addition, the CDC recommends that if an employee contracts coronavirus infection, the employer should follow the sanitation and disinfection protocols that might include sealing off areas the individual visited, using ventilation fans, and opening windows and outside does.
But the law does not necessarily require employers to undertake CDC recommendations. While the CDC has issued voluntary guidance suggesting employers to notify, it is not mandatory under the law.
What measures can you undertake when the safety management response by your employer seems inadequate?
OSHA’s General Duty Clause requires employers to provide each worker with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Experts state that this general duty clause requires workers to reveal potential coronavirus exposure to employees. If an employee is going into what they believe to be a relatively safe workplace, but find that they are being exposed to a deadly illness, they are not being apprised of the level of danger that they have a right to know about.
OSHA has experienced criticism for its lack of strong workplace safety enforcement in this rapidly moving pandemic. The agency is empowered to issue emergency standard regulations that employers would be mandatory for employers to follow. However, until now, it has not issued stringent regulations for infectious diseases such as coronavirus infection.
In fact, when issuing employer guidance for preparing workplaces for the coronavirus pandemic, OSHA states that its recommendations were “advisory in nature” and “created no new legal obligations.” In addition, OSHA acknowledged that workers experiencing medium-to-low coronavirus risk, such as billing clerks, will not typically get an on-site inspection if they file a complaint on coronavirus exposure.
Certain experts believe that OSHA has washed its hands of its responsibility towards the protection of workers. It is neither enforcing guidance by the CDC, nor requiring it. Workers find themselves on their own.
What measures can individual workers take in such cases?
Employees can bring their concerns to the notice of their employers and understand whether they are legally entitled to new accommodations.
Individuals with underlying medical conditions or with family members with underlying health conditions may qualify for job-protected unpaid leave based on the provisions of the Family and Medical Leave Act, or emergency paid sick leave under the new Families First Coronavirus Response Act.
In addition, workers with disabilities might also be entitled to reasonable accommodation, according to the ADA. Such accommodations might include job restructuring and modified work schedules.
Also, you can try organizing with your co-workers to improve your work environment, if unified activity with colleagues is protected for you under the provisions of the National Labor Relations Act. Employees will be faced with difficult choices until the recommendations of the OSHA and CDC are legally required.
Consult with a Committed Workplace Discrimination Lawyer
An employee should be able to feel safe and comfortable in their work environment. It is best to consult an experienced workplace discrimination attorney if you have faced discrimination on the job.
At the law offices of Kira Fonteneau, our qualified employment lawyers will work hard to make sure that your rights are protected. To speak to a skilled employment law attorney who can offer you solid legal advice and battle for your rights, call us today at (205) 564-9005.