On Friday, the State of Georgia declared a variety of businesses, including hair salons and gyms, could open their doors again even as the coronavirus pandemic continues to rage. This week, other states will follow suit.
This situation poses a hard dilemma for millions of Americans asked to return to work—as well as those in essential industries who have had to work all along—about how to balance risks to their health and their livelihood.
According to legal experts, employees don’t have a blanket right to refuse to work during the pandemic, but that doesn’t mean they can’t demand protection from obvious risks. Meanwhile, lawyers are advising business owners to think carefully about worker safety as they navigate a situation fraught with legal implications.
Workers’ rights during a pandemic
As engineer Nick Wheeler watched his coworkers fall ill to the coronavirus, he couldn’t understand why his employer, Charter Communications, refused to let them work from home. Finally, on March 13, Wheeler sent what he calls a “grenade” in the form of an email blast to hundreds of managers and employees in the company’s Denver office, calling the policy “pointlessly reckless.”
Within 10 minutes, a Charter VP summoned Wheeler into a meeting where a human resources manager accused him of “spreading fear.” He was flabbergasted.
“HR accusing me of spreading fear was the most ridiculous thing I heard in that meeting. The whole staff was talking about coronavirus already, and it was in the news every day with the governor planning to shut down the state,” he says. He added that the Charter policy felt even more absurd given that everyone in his office had laptops and access to a VPN (virtual private network) that would enable them to work from home.
The company changed its policy but not before Wheeler says he felt forced to resign. Now, the engineer says he is speaking with a lawyer about a wrongful termination suit, while the attorney general of New York pursues an investigation into Charter’s actions.
A spokesperson for Charter told Fortune: “We have dramatically reduced the number of employees going into the field or into the office while maintaining the efficacy of our business operations that is so critical to fighting this pandemic.”
Wheeler’s decision to send an email blast was a bold one, and one he claims led more than a hundred colleagues to send him messages of support. But while many other employees in the U.S. may confront a similar situation, they may be reluctant to take a similar measure out of fear of reprisal.
They can, however, turn to the federal Occupational Safety and Health Administration (OSHA), which protects employees from dangerous workplaces.
According to attorney Jonathan Segal of the firm Duane Morris, the federal OSHA rules take priority over state laws. That means they could protect workers in places such as Georgia, where the decision to open venues like bowling alleys has led to criticism from health experts.
But Segal and other employment law experts also say a general fear of catching the coronavirus isn’t enough justification to refuse to work.
“You’d have to be in imminent danger. An individual has a narrow right to refuse to go work on the basis of what a reasonable person would fear,” says Jason Bent, a law professor at Stetson University.
In such cases, he says, workers can call for an OSHA inspector to decide if a workplace is unsafe, and the law protects them from retaliation if they do so. Bent adds that if a group of employees protest working conditions, federal labor law likewise forbids retaliation.
But while federal law may be a tool for some workers, it may not always be a practical one. An interior designer, who spoke on the condition her name not be used, says the manager of the Dallas company where she works insisted staff come to the office even after the state issued stay-at-home orders.
“My coworkers discussed filing a complaint with OSHA but concluded it’s pointless. There’s lots of hoops to jump through, and the law is tilted in employers’ favor,” she says, adding that the boss finally allowed her to work from home after one of her colleagues became sick with COVID-19.
Aside from workers’ skepticism about the effectiveness of the OSHA rules, it also remains to be seen how “danger” will be interpreted in the case of the pandemic. The consensus among labor experts appears to be that an employer who takes careful measures to protect workers—such as by providing masks, shields, and sanitizers and enforcing social distancing—could likely avoid liability if an employee becomes sick.
Chicago attorney Monica Khetarpal, who advises businesses at the firm Jackson Lewis, is telling her clients to evaluate worker concerns on a case-by-case basis. This should include, she says, examining whether employees have pre-existing conditions that put them at a higher risk for COVID-19. Likewise, she advises companies to be mindful of the new Families First Coronavirus Response Act, which provides special protection to those with children. The law, which is in effect until the end of this year, requires many companies to provide paid leave to those who lack childcare as a result of the pandemic. It also requires them to provide paid sick leave to those subject to government quarantine orders or who are experiencing coronavirus symptoms.
Meanwhile, some employees who have contracted coronavirus at work are filing workers’ compensation claims—but the outcome has varied based on the state. In Oklahoma, the state agency denied compensation to an EMT while, in California, authorities are changing rules to make it easier to claim compensation.
There has also been at least one wrongful death lawsuit filed as a result of a worker who died from COVID-19. It involves a Walmart employee, but Bent, the law professor, says the case is a long shot at best, since such claims require the plaintiff to show the death was intentional. In response to the lawsuit, Walmart issued a statement expressing condolences and describing additional sanitation measures the company has put in place.
A possible legal shield for employers
As the debate over health risks to workers grows louder, business groups are lobbying Congress to pass a law that would shield companies from coronavirus-related lawsuits. The idea is backed by Rep. Mike Johnson (R-La.), a member of President Trump’s economic task force who predicted it would receive “near-unanimous support” from Republicans. The Wall Street Journal’s editorial board has argued such a law is needed to protect businesses—many of which are already struggling—from opportunistic class action lawyers. But labor advocates cited by the Financial Times say such concerns are overblown, and Democrats like Sen. Tammy Baldwin (D-Wis.) are proposing legislation that would force employers to do more to protect workers.
In the short term, as the political battle plays out, there are likely to be more individual whistleblowers like Wheeler, who says his only regret is that he didn’t stand his ground more.
And even as individual disputes get resolved, Khetarpal and other attorneys predict a surge in litigation over COVID-19 in the workplace during the next few months.
Much of this litigation is expected to focus on health threats to workers. But the pandemic will also give rise to disputes over related issues such as workplace privacy, according to Finn Makela, a law professor at Sherbrooke University.
Makela notes that employers are already exploring ways to monitor the health of workers, including by taking their temperature prior to a shift. He says that doing so would not be particularly invasive, but that other proposals could cross a line, including potential plans by some companies to require workers to install an app that would help their employers use contact tracing to track their locations.
Makela warns that employees who refuse could see their hours cut or simply be let go.
“The private sector has the power to impose behaviors on aspects of our social lives. Meanwhile the private sector moves more quickly than the government, and people are slower to respond to any intrusive conditions they might impose,” says Makela.
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