It's finally post-election and many offices are reopening and asking employees to return to work, while the danger of the COVID-19 pandemic is still very real. More than 9 million people in the U.S. have had confirmed coronavirus infections and more than 230,000 have died of COVID-19. Tens of thousands of new cases are reported daily nationwide. It is quite understandable that employees returning to the office would have valid health and safety concerns.
It is crucial that as employers, we demonstrate empathy and courage to make reasonable accommodations to help scared and worried employees to cope and feel better. As we cycle back and forth between workplace openings and closings based on infection rates, we need the tools and resources to weigh the employees’ health concerns with the employers’ business needs. Most businesses want to do the right thing to stay afloat and stop intermittent shutdowns in order to even keep their employees on the payroll either remote or onsite.
Return to Work Protocols for Employees
Remember, in general, the more closely you interact with others and the longer that interaction, the higher the risk of COVID-19 spread. If you return to work, continue to protect yourself by practicing everyday preventive actions. We are in November now, and after many months of protocols and shutdowns, we are all getting tired and potentially a bit lazy when it comes to practicing these safety protocols. However, it’s imperative to keep these items on hand when returning to work: a mask, tissues, and hand sanitizer with at least 60% alcohol, if possible. By using Good2BeBack, you will be notified immediately based on your responses to your employer’s or school’s screening questions and any test results you have entered, whether or not to stay home or go to work or school. Your employer or school administrators will also know immediately if you are symptomatic or infected based on your responses, and whether or not it is safe for you to return to work or school. More importantly, it is imperative that you follow CDC Protocols to stop the spread and prevent getting sick.
Review your employee handbook, many companies have new communicable disease polices. These policies address issues involving communicable illnesses in a sensitive and responsible manner, with concern for the rights and welfare of staff and general public. Where medically required, and/or recommended by the CDC, employees will be expected to comply with quarantine, or other such restrictions as prescribed by the government or a public health official. These policies are also reflected in Good2BeBack, so you know if you are in compliance with your employer’s or school’s policies or not.
Employment Law Minefields amid COVID-19
Generally speaking, an employer can terminate an employee if they refuse to come back to work, since most workers in the U.S. are considered “employed at will”. This means they can be fired for any reason and equally they can quit for any reason. Unless of course that reason in deemed illegal (discriminatory) or contrary to public policy or any of the new precedents established both federally and locally as a result of COVID-19. It is crucial to weigh the business needs with the employees’ legal rights. Tread carefully and always seek legal advice.
The Occupational Safety and Health Administration (OSHA)
According to the OSHA Act, employees can refuse to work if they reasonably believe they are in imminent danger. So, in the case of COVID-19, the employee would have to have a specific fear of infection that is fact based and not just a generalized fear of contracting an infection in the workplace. OSHA has a COVID-19 Webpage to provide information for workers and employers about the evolving coronavirus outbreak. Also, employees have the right to report COVID-19 related safety concerns without fear of retaliation.
Americans with Disabilities Act (ADA)
In response to the pandemic, the EEOC provides helpful information in the Pandemic Preparedness in the Workplace ADA Guide. The ADA makes employers provide reasonable accommodations to employees with known disabilities, unless the accommodation would pose an undue hardship. This is true during the COVID-19 Pandemic. Some examples of reasonable accommodations include:
• Personal protective equipment • Temporary leave • Work from home • Changing your job duties (removing non-essential job tasks) so you only need to do work that can be done from home or while social distancing.
The Office of Workers' Compensation Programs has published guidance for federal employees outlining Federal Employees' Compensation Act coverage as it relates to the novel coronavirus. Individuals injured on the job while employed by private companies or state and local government agencies should contact their state workers' compensation board. Many states have issued executive orders or amended their workers’ compensation statutes to create a presumption of COVID-19 coverage for certain types of industries such as California SB 1159. These bills protect the health and safety of all employees and the public by facilitating the provision of workers’ compensation benefits. On 09/17/20, Governor Gavin Newsom signed legislation that establishes a workers' compensation presumption. “Protecting workers is critical to slowing the spread of this virus,” Newsom said. SB 1159 codifies the COVID-19 presumption created by Executive Order N-62-20
The National Labor Relations Act (NLRA)
Many pandemic-related unfair labor practice charges are being filed with the National Labor Relations Board (NLRB) against both union and non-union employers. For employees in the private sector, if you and another worker feel your workplace is unsafe, and you both decide to not go into work for that reason, you are protected under the National Labor Relations Act (NLRA). NLRA Section 7 guarantees to all employees the right to engage in protected concerted activities (PCA). In the above scenario, not going to work for health and safety reasons, you both would be legally engaging in what’s known as “concerted activity,” for “mutual aid and/or common protection.” Also, the NLRA prohibits employers from retaliating against workers who are exercising their “concerted activity protections”.
Many companies have said that employees can work from home indefinitely, but there are still many jobs and many people that are just not suited to work from home. By using Good2BeBack, the daily decision process of whether or not it’s safe for you to return to work or school is simplified and efficient. For employees, there is also the fact that furloughed employees called back to the workplace usually lose unemployment benefits if they don’t return.
That being said, it is critical that companies communicate their safety protocols, sanitization policies and training requirements to all returning employees. With the fear of the unknown, its more important then ever to have open and honest conversations about employees concerns when physically returning to work. After all, we are all in this together, and how we handle challenges is how we show our character!
Carol Flynn is president of HR Solutions Inc and is a subject matter expert in sexual harassment, organizational development and workplace integration. She has over 25 years in human resource management and is a professor and educator with a Master of Arts in Industrial/Organizational Psychology; life-time certified senior professional in human resources (SPHR); certified EEOC trainer; and past investigative member of the Florida Bar Grievance Committee (FBGC). For further information, see www.hrsolutionsfl.com.