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All Contents © 2020The Kiplinger Washington Editors
By H. Dennis Beaver, Esq., Attorney at Law
| March 18, 2020Updated on May 29, 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.
This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.
Question: I believe wearing a mask should be a personal choice. I don't believe in them myself, and I don't want people telling me what to do. Can I refuse to wear a mask?
Rosenlieb: With respect to employees, in the absence of a medical condition or religious objection, which is subject to reasonable accommodation with alternative PPE, an employer can require the wearing of a face mask. Customers can be required to wear masks and other PPE. These requirements are based on current CDC, OSHA and EEOC guidance.
Klingenberger: You can make your personal choices based on your beliefs after you leave work. While you are on the clock, your employer can set rules and expectations at its discretion so long as the employer is within the bounds of the law. Beware, however, that even off-duty conduct can sometimes have work-related consequences.
A forklift operator named Antoine from Troy, Mo., can attest to that. You may have seen video of a huge Memorial Day pool party at Lake of the Ozarks in Missouri attended by crowds of partiers, most of whom were not wearing masks. Antoine — who was interviewed on the Today show the Friday after the party and asked that his last name not be used — was at that party. Now his employer has told him to stay home from work for 14 days to quarantine ... without pay.
Question: Believe it or not, my employer doesn't want workers to wear masks. We have been told it makes customers uncomfortable and that it projects the wrong image. What should I do?
Klingenberger: You may want to have a one-on-one discussion with your boss to express your concern. It is likely other employees share your concern. Masks are so common these days that I don’t think wearing a mask makes others feel uncomfortable, but your boss is entitled to her/his opinion. You could show your employer information regarding the use of masks that have been published by the CDC and OSHA, but that is a judgment call you will have to make on your own.
Rosenlieb: Employers must follow the directives of local and state public health authorities.
Question: I'm working from home and have learned through the grapevine that my company is using some kind of tracking software to monitor me and my co-workers. There are rumors that they are even accessing the cameras on our company laptops. Is that legal?
Rosenlieb: Maybe. The subjects of privacy and monitoring of communications, movements and productivity (in the traditional office setting and in the “work at home” setting) are much debated and sometimes hotly contested. Restrictions and prohibitions on monitoring of employees vary from state to state and are subject to the federal National Labor Relations Act. An employer, outside of an investigation of suspected criminal activity, will find the greatest success in these areas by advising employees in advance of steps that are being taken to monitor all forms of communication (e.g. emails, voicemails, phone conversations), movement (e.g. GPS trackers on delivery vehicles), and productivity (e.g. software that tracks productivity). All of these steps are generally legal, subject to restrictions. Policy announcements, acknowledged by employees, are generally the best form of communication. Employees should never learn of these issues through the “grapevine.” This is a complex area and employers are well-advised to consult with legal counsel in their state before moving forward.
Klingenberger: Employers have the right to monitor the use of business equipment, computers and vehicles, as well as the use of employee time. Most, but not all, privacy rights individuals enjoy outside of work do not exist at work. However, statutory and constitutional rights regarding privacy have been imposed and upheld in some instances by the courts. Those rights will vary from state to state. To the extent an employee has an expectation of privacy, whether well-founded or not, employers can reduce or eliminate that expectation by implementing clear policies that communicate to the workforce that the employer reserves the right to surveil, search, track and/or monitor. Privacy issues can become more complicated for employers who telework. A colleague recently showed me a picture of her long-retired mother’s home computer with a piece of paper taped over the camera lens. Apparently, she is nervous about an unknown source spying on her through the camera. Doing something similar on your computer might make Zoom meetings less interesting but could flush out the IT folks as to whether the camera is being used without your knowledge. That’s not legal advice, just random musing.
Question: The company I work for is opening up again. I've been working from home for weeks and can do my job fine from there. I want to keep working from home (mostly for convenience, but also because I'm nervous about the virus), but my boss is requiring me to come back to the office. Can I refuse?
Rosenlieb: Assuming that public health authorities have cleared the specific place of work for re-opening, absent an underlying medical condition (supported by a note from a health care provider) or specific childcare/school issues, an employer can require employees to return to their regular place of work. Teleworking may be considered to be a reasonable accommodation of a disability. This is a complex area, and employers are well-advised to consult with legal counsel in their state when a request for teleworking is made by an employee because of a disability.
Klingenberger: It is nice that you have enjoyed working from home, but all good things must come to an end. On the bright side, the request to return to work in the office is likely a sign of optimism that your region is past the worst of the pandemic. I agree with Jay that the employer has the right to require an employee to work at his/her normal work location. Employers must keep in mind that the protections included in the Families First Coronavirus Response Act (FFCRA) continue to apply through the end of 2020, including time off for COVID-19 related medical conditions and the need to care for others for COVID-19 related reasons. The FFCRA also authorizes the employer to obtain verification that the employee is taking time off for reasons allowed under the statute. Although it is understandable why people continue to be nervous, given the number of illnesses and deaths that have occurred across the country, that nervousness is not enough to insist on continuing to work from home. As employees are brought back to work, employers are well-advised to implement COVID-19 related safety protocols in the workplace. Many recommendations have been published by the CDC and OSHA on the subject.
Question: Working at home is not an option in my line of work. My employer isn’t providing the workers with gloves or masks: We have to bring our own. Do workers have a right to be provided with protective equipment on the job?
Rosenlieb: Yes. The federal OSHA General Duty Clause requires that an employer provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm — this includes injury from infectious diseases such as COVID-19. (OSHA-approved state plans will have similar or more protective standards.) Employers are obligated to provide their workers with personal protective equipment (PPE) needed to keep them safe while performing their jobs. It should be noted that an employee cannot demand specific PPE or PPE that is not deemed appropriate for the exposure.
Klingenberger: The OSHA general duty clause certainly creates an obligation for employers to provide a safe workplace and to provide necessary personal protective equipment (PPE). However, it is not entirely clear how those obligations apply in the context of the COVID-19 pandemic. An employer’s obligations may vary depending on the work being performed. Health care workers, for example, likely need a higher level of protection than a retail worker, although both are extremely important and both are providing services in a critical time.
Guidance from OSHA during the past few weeks recognizes that difference in protection needed for various industries. The OSHA COVID-19 Guidance for Retail Workers provides tips for employers “in the retail industry (e.g., pharmacies, supermarkets, and big box stores)” to “help reduce your employees’ risk of exposure to the coronavirus.” The tips include: “Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.”
Why did OSHA choose the word “allow” rather than “require” in the tips for retail workers? The choice likely reflects several considerations:
Question: The company, where I work, doesn’t seem to be taking this crisis seriously enough. There have been no real efforts made to ensure social distancing in the workplace, other than some signs and tape marks on the floor, which are not enforced. It doesn’t feel safe, but I fear retaliation if I speak up. What should I do?
Rosenlieb: An employer is obligated to take such steps as are required by OSHA or an OSHA approved state plan, not more. In other words, an employee who doesn’t “feel” safe has little basis to demand further protection if, in fact, the employer is fully compliant with its state and federal safety obligations. In the event that the employer has policies in place, but the policies are not followed, the employee will have a basis for a complaint.
Klingenberger: I agree. Oftentimes employees would like to see more done by an employer when the employer is actually fully compliant. As has been said many times, these are unprecedented times. Business owners and each of us as individuals are making decisions in a world of uncertainty. On a personal, local and national scale we are asking, have we done enough? Sometimes, there is strength in numbers. If some of your co-employees share your concerns, consider going with another employee to express those concerns about safety in a professional manner to your employer. Offering ideas on solutions may help the conversation.
Question: I’m in an industry where demand is currently skyrocketing, and workers are being pushed to the brink. Can I refuse to work overtime?
Rosenlieb: No. There are, however, a couple of exceptions. First, if a lack of sleep or fatigue creates demonstrable safety concerns, the employee may refuse to work if he or she has a good faith belief that the conditions create an imminent risk of serious injury or death. Second, if the employee is part of a workplace covered by a collective bargaining agreement, the employee may be excused from working “mandatory” overtime.
Klingenberger: Jay’s answer is spot on. Unfortunately, we are in situation where some employees are working far more than they would like and others who would love to be back at work in any capacity.
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.
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.
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.
Do you have a responsibility to do something about it?
And, once more, there was agreement by both Klingenberger and Rosenlieb as to what employers and employees need to do when faced with a co-worker who cares little for his or her colleagues.
“We all should hope that concerned co-workers would report dangerous behavior of whatever type, physical or health-wise,” commented Klingenberger.
“Today we all have a duty to each other to act prudently and safely. Any employee who puts co-workers in harm’s way should face potential termination. Our country is facing one of its greatest health threats in over a century. We need to watch out for each other more so than at any other time in memory,” Rosenlieb strongly maintains.
Written by H. Dennis Beaver, Esq. A graduate of Loyola University School of Law, Mr. Beaver joined California’s Kern County District Attorney’s Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, “You and the Law.” Through his column he offers readers down-to-earth advice free of charge.
Both lawyers agree there is no obligation to serve everyone, unless you are avoiding someone for clearly illegal reasons, such as race, religion or national origin. They equally believe a polite way of dealing with a customer who is coughing would be for restaurant employees to say, “We are concerned, given what is going on with the coronavirus. If you will please step outside, I will bring you the food.”
While neither attorney was aware of a legal obligation to personally inform people that you have been tested positive, they observed that health departments ask every person infected to list all the people they have been in close contact with.
And while I do not know of a legal duty in the United States of self-reporting to others, it is not much of a stretch to compare their silence now with that of people who have been jailed for knowingly spreading herpes and AIDS.
To me, knowingly exposing those around you to the virus could be seen as an assault and battery. History proves that correct with the story of Typhoid Mary, an Irish cook believed to have infected 51 people with typhoid fever, several of whom died.
If you are not familiar with her story, it is worth looking up, as you will find a cast of characters right out of a horror movie, including Mary herself, who was aware of the danger she posed to others and yet continued to work as a cook, literally killing people.
She was the first person in the United States identified as an asymptomatic carrier of the disease. Considering they did not have disability insurance in place in those years to give her an income, she could not stop working as a cook — exposing others to the disease. She was twice forcibly isolated by authorities, and died after a total of nearly three decades in isolation.
Klingenberger: I am not aware of a requirement in OSHA or various federal safety laws where someone is required to make this disclosure. Employees are always encouraged to disclose those things, and especially on-the-job injuries. There can be ramifications if they don’t. For example, they hurt their back and do not disclose it for six months, their workers’ compensation claim could be denied for a failure to report it in a timely fashion.
Rosenlieb: While not a violation of a law, if the company had a policy requiring employees who become ill with the flu, even the common cold, to report this to HR, and if that were violated, it could result in discipline for violation of an order.
If you are advised to stay home by medical professionals, both attorneys agree that the employee could face termination.
Do you have any options other than to follow the order?
Note: Not only has the president issued executive orders, which have shut down many businesses in the country, but state governors are also issuing similar mandatory orders. Constitutional lawyers will tell you that the government has an inherent power and duty to protect the population, especially in areas of health.
Klingenberger: The imposition of quarantine, shelter in place and business closure orders are examples of the state’s ability to exercise its police power. Failure to comply may be a misdemeanor and subject the company to fines. Time will tell whether tax and other forms of relief will be granted to help deal with the enormous financial losses.
Rosenlieb: There is no choice but to follow those mandatory orders or face fines.