By Lynne Curry bio
1 Pushback from employees who choose to stay on unemployment
Question:
We didn’t expect the pushback we got from two of our furloughed employees when we called them back to work, particularly as we allow employees to work from home part of the workweek if their work can be accomplished remotely. One ignored two “return to work” emails but responded to a “work starts Monday” text with “thanks, but no thanks.” The other emailed he needed a raise if we wanted him back. We called him and said, “that’s not in the cards, we’re barely squeaking by.” He said he made more money on unemployment than working, so there was no real percentage in returning to work. What do we do with this?
Answer:
A condition for receiving unemployment requires being ready and able to work. Employees who lose their jobs or have their hours reduced through no fault of their own receive unemployment benefits as a temporary replacement for work pay. Employees who refuse an employer’s offer to return to work, either by resigning or asking for a leave of absence, risk losing unemployment benefits unless they have a legitimate safety or other legally protected reason for not returning to work. While you don’t need to go out of your way to inform the unemployment office this has happened, if you’re asked about the situation by the state or given Unemployment Insurance (UI) claims to fill out, you need to accurately report the situation.
The Department of Labor has issued guidance that “quitting work without good cause to obtain additional benefits may be considered fraud”, making employees who do so ineligible for benefits now and possibly indefinitely. Employees who intentionally remain on unemployment when they could take viable work may also be asked to repay any fraudulent income received and may face a criminal investigation.
Before you assume your two employees lack legally protected reasons, ask each for more information. Text the first and ask for his reasons if he doesn’t intend to return on Monday. Email the second that you want him to return to work at his former rate of pay and ask him to provide his reasons in writing if he chooses not to return.
Employees unable to return to work because they’re care-taking sick family members or can’t arrange childcare and their children’s schools or childcare facilities remain closed may have valid reasons. They may qualify for support from the Families First Coronavirus Response Act (FFCRA). Employees can’t retaliate against employees who opt to receive these benefits and may elect to provide them a furlough extension or leave of absence. If this is true for either employee, work with them to agree to a return date, provide the date to them in written form and ask that they sign and return the document.
Employees who quit or resign due to legitimate workplace safety concerns may be able to collect UI. The Occupational Safety and Health Administration provides employees the right to refuse work would expose them to a hazardous condition that might result in a “real threat” of death or serious injury. A general fear of COVID exposure doesn’t give employees a sufficient reason for avoiding work.
What arrangements have or can you make to enable your employees to accomplish their work from home? If you and your employees face a state or local order asking employees to work from home as much possible, employees who can’t work from home because they lack necessary equipment or consistent Wifi may have a reason you need to consider.
Before an employee can exercise the right to a good faith refusal, the employee must present the employer with legitimate concerns about the hazardous condition and seek a correction. The National Labor Relations Act prohibits employers from retaliating against employees for engaging in protected, concerted activities, such as when employees band together and refuse to work under unsafe conditions. Additionally, the Americans with Disabilities Act generally protects employees whose underlying medical conditions entitle them to reasonable accommodations, which might include an unpaid leave of absence.
Finally, if either of your employees can’t provide a legally protected reason, remind them in writing that accepting offered work is a condition of employment and by not returning to offered work they’ve submitted an at-will resignation.
2 My boss refuses to wear a face mask
Question:
In past months, it’s just been four or five us in the office. Two of us wear masks when we’re around each other or any of our occasional drop-in visitors. The others refuse to wear masks or stay six feet away from the rest of us.
One is my boss. I love my job and the only time I asked him a general question about masks, he insisted he follows all CDC guidelines. When I asked if we would all begin wearing masks, he brandished old information from OSHA that says mask-wearing wasn’t essential.
I don’t want to risk a fight, but next week our office will be back to full staffing, minus anyone who’s been let go. I’m worried about my health. What can I do that won’t get me on my boss’s bad side?
Answer:
Your boss does not wear a mask because he doesn’t want to or doesn’t feel it’s necessary. That means you need to make him want to or convince him it’s necessary.
Start by understanding your boss’s position which, like many who ignore the CDC’s current guidelines, relies on old information. When we knew little about COVID when the pandemic began, public health officials didn’t universally endorse mask-wearing, in part because they wanted to ensure medical providers had sufficient access to personal protective equipment. That and other factors led mask-wearing to become a politicized, divisive issue.
We now know more concerning how effective masks are against COVID-19 spreading from asymptomatic individuals to those who then suffer gravely. According to multiple researchers, “nearly all droplets generated by speaking and talking were blocked when the mouth was covered by a damp washcloth. In another experiment, scientists examined over 100 individuals with a respiratory infection” and discovered that masks reduce respiratory viruses carried by droplets and aerosols”1.
Attorney Eric Brown notes that while “the Occupational Safety and Health Administration (OSHA) has been slow to issue regulatory guidance that addresses this area, OSHA’s General Duty Clause requires that employers furnish to each worker ‘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.’ It is unlikely, however,” says Brown, “that a failure to wear a mask will violate this general policy other than in ‘high-risk’ place of employment.”
Brown adds that as an employee you “have other legal avenues you can pursue. If you fit a high-risk category because of a co-morbidity associated with COVID, you might request ‘reasonable accommodation’ to minimize the risk of exposure to COVID. Mask-wearing by fellow employees may be a ‘reasonable accommodation” under the Americans with Disabilities Act.”
You can also tell your boss the truth, which is you worry about your health. Because he feels comfortable he follows CDC guidelines, you can let him know the Center for Disease Control now encourages everyone to wear a face covering when near others to prevent speaking COVID-19. You can help him realize his lack of a face mask might worry customers and other employees who remain silent.
If you decide to take a greater risk, you can remind him his actions might give him liability for what results from the lack of mask-wearing in your work environment, whether it leads to an infection that shutters your office or an illness or death. As I referenced in an earlier post, multiple Wall Street Journal articles detail lawsuits filed by both employees and their families allege employers failed to protect employees from COVID-19. 2, 3
3 I don’t want to wear a face mask; can my employer make me?
Question:
My employer’s “back to the office” email informs us we’re required to wear face masks anytime we’re not at least six feet away from any coworker or customer. That doesn’t help my office mate or I who sit at adjoining desks just three feet from each other.
I called her and she doesn’t want to wear a mask all day long either. I told her I didn’t plan to wear one. She says she will since she doesn’t want to get in trouble but doesn’t mind if I don’t wear one.
I’ve tried several masks and they’re all uncomfortable. I don’t feel like I breathe well in them, and I feel fatigue on days when I’m forced to wear one because I’m near someone who insists I do. How do I talk my employer into giving me an exclusion for myself and maybe for my coworker? If I say nothing but don’t wear one unless I’m in the breakroom or at the copier, can my employer fire me if I’m spotted not wearing one in my office?
Answer:
First, you need to talk to yourself. How will you feel if you interact with a coworker or client whose family member contracts COVID-19? While there is much we don’t know about COVID-19, we know you might carry the virus and yet be asymptomatic. If so, you might infect anyone with whom you interact and they may infect others, some of whom might die or face a lifetime of COVID-related problems. Masks help prevent those who wear them from spreading respiratory droplets and remind wearers not to touch their faces. For these reasons, the Center for Disease Control (CDC) encourages everyone to wear a face covering when near others to prevent speaking COVID-19.
Unless you have a more compelling reason for avoiding wearing masks than discomfort, your employer can’t allow you to potentially infect others. If your employer does, they may take on liability for what results. Further, your lack of a face mask may worry other employees and customers or even shut down your employer’s business if you infect someone else. Some states require employees in certain occupations, particularly public-facing ones such as bus drivers or hair stylists, wear masks.
Because the CDC’s guidance support employers who set policies require employees to wear masks, employers can fire employees who refuse to wear them unless the employee has a lawful reason for refusing. Employers whose employees refuse to wear masks should first ask employees to better understand their reasons.
Most mask-wearing regulations make exceptions for individuals for whom mask-wearing have legally protected reasons for their refusal, such as when masks creates health problems, such as when an employee already has pre-existing respiratory problems such as asthma or COPD, when the mask creates or exacerbates a hazard or when the mask interferes with legitimate job duties.
Examples of hazards include when masks might become contaminated with chemicals, causing employees to inhale the collected chemicals, or when a mask might get caught in machinery. Cloth masks may become damp from employee breathing or collect droplets of others’ infectious respiratory secretions.
Job duty issues include when the masks steam up the employee’s goggles, impeding the precision sight needed for some job functions, or interfere with communication for employees who rely on lip reading. In the latter instance, the OSHA recommends using masks with clear plastic windows around the mouth.
Employers may need to provide employees with instructions or training on how to wear, maintain and clean their face coverings. Masks must securely cover their wearers’ noses and mouths and fit snugly on all sides. Once employees put their masks on, they shouldn’t remove them unnecessarily.
Employees need to wash their hands before putting on or removing masks and to wash cloth masks after each use, either in a washing machine or by soaking them in a bleach solution for five minutes and then air-drying them in the sun or on a high setting.
Employees need to discard single-use face coverings after each use, and employers need to provide employees a sufficient supply so that employees can replace them as needed, potentially more than once a day.
You can, of course, petition your employer to allow you to work from home, find a medical provider who may document that you fatigue due to an underlying health condition that mask-wearing exacerbates, or decide you’ll return to the workplace and hope to hide out in your office. If you choose the latter course, you place both yourself and your coworker at risk, as you’ll violate the policy and she’ll be complicit. Worse, you might risk others’ health. Is your “comfort” is worth what it might cost?
4 Suing employers for failing to protect employees from COVID
Question:
My partner and I have owned and operated our practice for 23 years. When the pandemic first hit, we thought we could handle it like we weathered other setbacks. We pulled our team together, gave brave speeches, made promises to them and each other.
Then COVID hung on. We let some employees work from home, furloughed others and finally laid off those working from home because we couldn’t carry the payroll load. Despite the aid we received, we reached a point where we couldn’t afford to pay ourselves. The two of us haven’t paid ourselves since May 1.
As the pandemic continued, several of our employees seemed to turn against us, holding us accountable for laying off their friends and coworkers, and acting as if we were unreasonable by insisting that the majority of them needed to work on site instead of remotely. My partner thinks we need to cut our losses and shut down. He wants us to talk with our landlord to negotiate a settlement that lets us out of our lease. We would then sell our equipment for what we can get.
I love our business, but I’ve heard rumors that employees can sue employers if they get COVID. If that’s true, I don’t see a percentage in keeping our business going.
Answer:
Both employees and their families have filed lawsuits alleging that health-care facilities, retail stores such as Safeway and Walmart, and other employers have failed to protect employees from COVID-19. The employee suits demand that employers reimburse them for their medical expenses, damages, and future earnings.1 Labor unions have launched some of these suits. The Las Vegas Strip hospitality workers has sued casino operators, alleging the employers should have immediately informed employees and shut down food-and-beverage outlets when coworkers tested positive and should have adequately contract-traced before allowing coworkers of the infected employees to return to their jobs.2
Families of employees who died after contracting lethal cases of COVID-19 have sued, alleging that their loved one’s employers were grossly negligent. As one example, the family of a poultry plant employee who died has sued Pilgrim’s Pride Corporation claiming their family member contracted COVID at work.3
Employers defending against the initial sixty-nine lawsuits claim they’ve taken reasonable steps to combat COVID, including sanitizing their workplace, requiring that employees wear masks and screening employees for signs of illness. They note that it isn’t possible to know how or where employees contracted COVID-19. Many of the initial lawsuits center on whether employers adhered to state and federal guidelines such as requiring mask-wearing to protect their employees.
According to Wall Street Journal’s July 30th edition, employers have rarely been found “liable for employee deaths tied to the workplace”.4 First, plaintiffs need to meet a high legal bar in proving that their employer’s safety practices, or the lack of them, were the reason employees contracted the virus. Second, when employees become ill due to workplace exposure, it generally becomes a workers’ compensation issue, with damages capped by statute.
According to legal experts referenced in the Wall Street Journal, the pandemic may radically change how these lawsuits play out. Employers that fail to enforce social distancing, don’t adhere to mask-wearing guidance or fail to send ill workers home might be found liable particularly if a sympathetic jury finds the employers negligent.1, 3
Further, employers may face liability if the employee brings COVID-19 home and infects a family member. In several landmark cases, Courts have held that employers owe a duty of care to spouses placed at risk. As one example, the New Jersey Supreme Court allowed an employee’s spouse to bring a tort claim against an employee after suffering injury from laundering the employee’s asbestos-laden work clothes (Olivo v. Owens-Illinois).
You and your partner face a difficult, potentially lose/lose decision for both yourselves and your employees. If you decided to remain in business, you can minimize the risk of a potential lawsuit by proving you’ve taken COVID-19’s risks seriously. Have you implemented the best-known practices to protect your employees? CDC Guidance for Businesses & Employers: Plan, Prepare and Respond to Coronavirus Disease 2019 provides employers answers for reengineering their workplaces. It suggests that employers provide employees with masks and other personal protective equipment, stagger shifts, install robust ventilation or air filtration systems and implement pre-shift temperature checks to identify those who might carry the virus and send them home.
Finally, while bills in Congress address some of these issues, both employers and employees face rough days ahead.
2https://www.wsj.com/articles/las-vegas-workers-sue-casinos-over-covid-19-safety-11593468142
3 https://www.lexology.com/library/detail.aspx?g=1b2c9dac-2a70-4750-82fe-a5948f763fc0&l=93C2S95
4https://www.advisory.com/daily-briefing/2020/08/03/covid-lawsuits
5 They don’t seem to realize they could take our company down
Question:
Our small practice is hanging on by a shoestring. Three of our employees attended a summer barbecue. None of them wore masks. Another barbeque guest was COVID-infected.
One after another each of our employees became ill, forcing most of our team to quarantine. It cost our small company $50,000 and we used up all our Paycheck Protection Program funds.
Our team includes several young, carefree employees who aren’t personally afraid of COVID. At least one has said, “I’d like to get it and not to have to worry anymore.” How can I make it clear to these employees that their individual decisions to engage in high-risk off-work behavior place everyone’s job at risk? I don’t want to shame those who attended the barbecue but need every employee to realize their choices have consequences.
As an employer, can we have a policy that asks employees to disclose when they’ve been exposed? Can we penalize staff if they deliberately conceal exposure? Can we have a policy that penalizes employees who falsely claim exposure and access FFCRA leave?
Answer:
Multiple laws governing an employee’s off-duty rights generally give employees freedom of action when not at work, even though this might include exposure to those with COVID-19.1,2 This means employers need a strong reason before asking employees intrusive questions unless the employee’s off-duty conduct could endanger the employee’s coworkers, customers or the employer’s business.2
COVID-19 may give employers that strong reason, as the employer needs to keep the workplace safe for all employees and their customers. The Americans with Disabilities Act allows employers to make sensitive medical inquiries of employees concerning situations that pose a direct threat to the health and safety of the employee, coworkers or customers and this may include COVID-19 infection or exposure.3,4 Employers may require employees to sign and acknowledge the employer’s policies on preventing the spread of COVID-19 by abiding by all state and local public-safety and health restrictions5. Employers, particularly those that provide direct-care to elderly or immune-compromised individuals may ask employees in a daily health survey if the employee has been in close contact with a presumptive or confirmed case of COVID-19. Employers may be able to send home employees who don’t practice social distancing or mask-wearing practices required by state or municipal order or who have been in close contact with someone who has tested positive.3,4
According to employment attorney Jon Hyman, “Employees need to understand they play an important role in keeping their co-workers and workplace safe. If they engage in high-risk activity outside of work such as traveling to a COVID hotspot, attending a mass gathering, or drinking at a crowded bar, they need to realize their conduct could have job-repercussions. An employer has the right to place them on a fourteen-day unpaid leave. I personally feel no sympathy toward employees forced to sit on the sidelines for a couple of weeks without pay because they didn’t take personal responsibility to keep safe during a global pandemic. Employers, however, need to make sure employees fully understand the potential consequences of their out-of-work behavior to avoid misunderstandings.”
Attorney Hyman adds, “An employer can and should discipline or fire an employee who conceals exposure; however, they need to make crystal clear in their policy the obligation to report and the consequence for concealing exposure.”
An employer’s policies can also include rules outlining consequences for providing false documentation. These policies would allow you to fire an employee who knowingly falsely reports he has COVID-19. An employer who suspects an employee has falsely claimed COVID-19 infection to access Families First Coronavirus Response Act (FFCRA) leave can ask the employee to provide documentation and can then contact the medical provider to determine its legitimacy.
Finally, you can use validated news articles to educate employees. While we hope all employees will mask up and socially distance to protect themselves and others, some employees may only respond to what directly impacts them. You can provide these employee articles that document that those who experience even a light brush with COVID-19 may acquire COVID as a long-companion in the form of ongoing limitations such as fatigue, shortness of breath, heart palpitations, and discomfort with physical activity6.
1https://www.nolo.com/legal-encyclopedia/off-duty-conduct-employee-rights-33590.html
3Should You Monitor Workers Who Aren’t Social Distancing Off Duty? https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-off-duty-not-social-distancing.aspx
6https://www.advisory.com/daily-briefing/202006/02/covid-health-effects/
