Working during a pandemic can be scary. You might be rightly worried about possible workplace exposure and wonder about how to protect yourself. Millions of people in the U.S. wonder whether they have the right to wear personal protective equipment at their jobs. Many others wonder whether they have the right to stay at home if their workplace conditions are unsafe. Finally, many people wonder whether their employers have a right to check their temperatures or ask questions about their medical conditions. Several federal agencies have issued guidance about the obligations employers have to their employees during the coronavirus pandemic. Here is an overview of the guidance from Swartz Swidler so that you can understand your rights.
Wearing PPE in the workplace for protection
Employers are required to provide their employees with the PPE that they need to keep safe while they are working. The nature of your job will depend on the types of PPE that you are entitled to receive. High-risk workers in health care, mortuaries, and others that require them to stand within six feet of others who have suspected COVID infections are entitled to be provided with face and eye protection, gloves, and N95 masks or their equivalent. Your employer must also provide you with any other PPE you might need to protect you.
If you are a lower-risk worker, your employer can review your work duties to determine the type of PPE that will best protect you. If you must interact with the public face-to-face each day, your employer should provide you with a face mask. If you are required to handle frequently-touched items, your employer should provide you with gloves and require you to wear them.
What can be done if an employer refuses to provide PPE or maintains the workplace in an unsafe condition?
If your workplace is unsafe, you should start by telling the human resources department or your supervisor about your concerns. If nothing is done, you can then file an OSHA complaint. Employers are prohibited under the law from retaliating against employees who file complaints or who cooperate with OSHA investigations.
In some cases, you can refuse to report to work or walk off of your job because of unsafe conditions. However, you must meet all of the following conditions:
- You alerted your employer to the hazardous condition, but your employer refused to correct it.
- You believe danger from the hazard is imminent.
- A reasonable person would view your workplace as creating dangers of serious injury or death.
- There is no time to address the danger through normal means of enforcement.
For example, if you work with the general public in regular face-to-face interactions, you might be able to refuse to work if your employer will not allow you to wear PPE at your job.
Can an employer discipline an employee for complaining about not being provided PPE?
Employers are prohibited from retaliating against employees who ask for PPE, file OSHA complaints, or cooperate with OSHA investigations. If your employer retaliates against you, you may have grounds to file a lawsuit. Your employer can also face substantial fines from the government if it takes any adverse job action in response to your complaint.
Can employees who contract COVID-19 at work sue their employers?
It is unlikely that you will be able to sue your employer if you contracted COVID-19 at work. Workers’ compensation laws mandate that the exclusive remedy for workplace injuries and occupational illnesses is the workers’ compensation system. While you might not receive as much compensation from workers’ compensation, you also will not have to file a lawsuit and prove that your employer was negligent.
Can my employer take my temperature before I start working each day?
Your employer can take your temperature each day before you begin work. However, your results must be kept confidential. You should keep in mind that many people who are carriers of the coronavirus do not have fevers. This makes it important for employers to implement stringent health and safety procedures to minimize the spread of COVID-19. According to OSHA, employers must follow basic prevention measures for infections, including promoting proper handwashing and respiratory etiquette. Other procedures like allowing flexible work schedules are also recommended. Employers should also have processes through which they can quickly identify and isolate people who are ill.
Can an employer ask about symptoms or positive COVID-19 tests?
If an employee calls in sick to work, his or her employer will likely ask about whether the employee has experienced any symptoms of COVID-19 or has tested positive for the virus. Employers are allowed to ask these types of questions and to refuse to allow you to work if you refuse to answer them. However, any information that you provide about your symptoms must be kept confidential by your employer.
Can your employer tell your coworkers that you are positive for COVID-19 or are experiencing symptoms?
Your employer cannot tell your coworkers that you tested positive or are experiencing COVID-19 symptoms. However, your employer can tell other employees that someone has tested positive for COVID-19 or is experiencing symptoms.
Can an employer require you to provide a doctor’s note before returning to work after taking sick leave?
Your employer is allowed to ask you to provide a doctor’s note before allowing you to return to work after you have taken sick leave.
Can an employer ask an employee whether any of the employee’s family members have COVID-19 or are experiencing symptoms?
Employers are not allowed to ask employees about their family members’ medical conditions. However, your employer can ask you if you have been in close contact with anyone who has been diagnosed with the virus or who has been experiencing symptoms.
Talk to the attorneys at Swartz Swidler
If your employer is failing to meet its obligations to you or has retaliated against you for filing an OSHA complaint, you may have legal rights. Talk to our experienced employment attorneys by calling us at (856) 685-7420.