The Coronavirus at Work: Your Legal Questions Answered

 

By H. Dennis Beaver, Esq., Attorney at Law

via Kiplinger - March 18, 2020

 

The coronavirus has become a sneak attack in slow motion on the American workforce. Fear has become the operative word, not only of falling ill, but the impact this virus is having on our economy, on jobs.

 

Employment law attorneys are swamped by calls from business owner clients, wondering what they are allowed to do in an effort to keep their employees safe and their doors open.

 

I ran the following questions by two attorneys in Bakersfield, Calif., who specialize in employment law: Dan Klingenberger and Jay Rosenlieb. They provide a global perspective to these issues challenging American businesses today.

 

Can your employer force you to go to work?

 

Klingenberger: “The answer would depend on the circumstances. If there has been evidence of spread in the workplace, for example, someone has it, an employer could not force the other employees to come to work in that environment, as there is a direct threat of contamination. But with no evidence of exposure, or the exposure does not impact all employees, then, the employer can insist that people come to work.”

 

Rosenlieb: “In the event of an immediate or imminent danger, the Occupational Safety and Health Administration (OSHA) provides that an employee can refuse to work. Further, the National Labor Relations Act (NLRA) protects concerted activity by employees. Concerted activity includes a refusal to work because of unsafe working conditions.”

 

Can you be fired/disciplined if you refuse to go to work?

 

I asked, “What if there is no legitimate reason to not come to work, but an employee still refuses to show up. Could this result in discipline?”

 

Klingenberger: “Yes, that is possible, but in today’s COVID-19 environment, an understanding employer could tell an employee, ‘If you do not want to come to work for the time being, you may use vacation, sick leave or other time-off benefits,’ if that is a benefit the employer offers. The employer also has to balance other considerations, such as fairness to other employees and the need to get the work done.”

 

Rosenlieb: “While an employer could take more serious action, those who care about their employees should work with them to address their concerns and find alternatives to being present at the office, if possible. And we are seeing that with a large increase in people working from home, telecommuting.”

 

What should you do if an employee comes to work sick because they need the money?

 

Klingenberger: “If an employee comes to work who is obviously ill and showing symptoms of coronavirus, the employer should send the employee home because of the risk to others. If the employee misses work because of having the virus or must be quarantined, many states, including California, have made unemployment insurance benefits available for days missed or reduced hours that might not normally be available.”

 

Rosenlieb: “An employee who presents at work with symptoms of a contagious illness can be sent home. The employer is not obligated to provide work to an employee who presents with symptoms of a contagious disease. On the other hand, an employer cannot send an employee home simply because the employee is a member of a high-risk group — someone who is 65 years old and older or has underlying health conditions. This would be discrimination on the basis of protected class status.”

 

What happens if the governor or president orders you to shut your business? ...  

 

Do you have any options other than to follow the order? ...  

 

Can you turn away a customer who is coughing? ...  

 

Do you have a legal responsibility to inform others if you later test positive? ...  

 

What is your legal responsibility if you start to get an inkling that you are getting symptoms? ...  

 

Say you are quarantined by the health department. What would happen if you disobeyed? ...  

 

What if you know people who are doing risky things on the job, exposing co-workers to harm? ...  

 

Do you have a responsibility to do something about it? ...  

 

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https://www.kiplinger.com/slideshow/business/T012-S014-coronavirus-at-work-your-legal-questions-answered/index.html