Many employers still have not taken action to protect employees from exposure to the coronavirus. Nor have they developed policies to allow employees to work from home in order to avoid exposure.
Here are five questions we recommend you ask your employer. It’s best to ask through email or other written communication, so there is a clear record of what’s been asked, and what’s been answered or ignored. We also recommend that multiple employees join in the request. Employees are far less likely to be the targets of retaliation, for speaking out about their rights, if they do so as part of a group. Further, employees who collectively ask about important workplace issues enjoy protection under the federal National Labor Relations Act. Such group requests are referred to as collective or concerted action, and garner special protection.
Here are the questions to ask:
- What is your plan to help employees stay safe and avoid being infected by the coronavirus at work? It’s important for employers to recognize the risk, and to develop a specific plan for dealing with it. This could include allowing some employees to work at home, in order to create greater distances between those who remain in the office. It could also include allowing the entire workforce to telework, if possible. And it might include limiting or prohibiting contact with customers. In some workforces, it is appropriate to ask the employer for personal protective equipment (PPE) such as facemasks, gloves or shields.
- What plan do you have in place to detect and separate employees who might be infected? From conversations with concerned employees around Georgia and Florida, we’ve learned that many workplaces are circulating panic-driven emails about the virus, but are not informing their employees how to determine if they might be infected, and what to do if they are. The law does not require employers to be shy about policing the workplace to ensure infected employees seek care, and that such workers are allowed the flexibility to work from home or to take leave. Federal safety regulations require that employers provide an environment free from “recognized hazards” that cause or are likely to cause death or serious physical harm. This is referred to as the “OSHA General Duty” clause. The law is clear that if your employer reasonably believes one of your coworkers might be infected, the employer can, for example, use noninvasive temperature gauges to take the temperature of potentially-infected employees. If your employer has no such policy in place, or, worse, does not even know that it can take such steps to protect you, it is far behind the curve.
- Do you have written policies or procedures that will help us understand the Emergency Paid Sick Leave Act and the Emergency FMLA Expansion Act, both passed March 19 and effective April 2, 2020? These laws take effect in about ten days. They apply to virtually all employers with 500 employees or less, and to all government employers. Although the laws were passed just three days ago, employers should have already circulated information about them. These new laws are of critical importance to everyone, but particularly parents of young children whose daycares and schools are closed for the next several months due to the coronavirus. Your employer must have its policies and procedures in place by April 2. That is the date that eligible employees can begin taking advantage of these laws. If you or a family member has been affected by the coronavirus – either infected, potentially infected, or affected because young children have no daycare or school alternatives – you should immediately request this type of leave from your employer (in writing).
- Can I telework to minimize my risk of exposure to the coronavirus? Even if you are not sick, it may be wise to limit the amount of time you spend outside your residence. Now is the time to ask your employer for the ability to work from home. Many employers are allowing it without question. Some employers are allowing it on a selective basis, without clearly-established criteria to ensure that all employees are being considered equally. It is a fact of life, however, that few employers can allow everyone to telework, so it’s important to get your request in early.
- Are you going to lay employees off and, if so, how are you choosing the employees that will lose their jobs? How much notice will we have? Many employers have already begun to lay off employees in huge numbers, particularly in retail and hospitality sectors. While employers often have the right to reduce their workforces, it is not always without exception. Your employee handbook may determine what rights you have. Further, an employer cannot choose employees in a discriminatory manner, such as by choosing employees because of their race, age, gender or disability. Unfortunately, some employers use crises like this as a way of targeting certain classes of people. That is always illegal. Finally, employees may have rights to compensation when laid off, depending on the workforce in the number of people who are scheduled to be eliminated.
Questions about your rights? Call us for a free consultation at (800) 663-7999. Our firm has deep expertise in employee rights. We do not practice in any other area of the law, and we do not represent employers under any circumstances.
Categories: Accommodations, ADA Retaliation, Coronavirus COVID 19, Family & Medical Leave Act Of 1993, FMLA Leave, HIPAA & Medical Information
Jim Garrity, Esq. - Employee Rights Lawyer 
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