Employees have a lot of concerns as they’ve returned to work or are in the process of doing so amid the coronavirus pandemic.
For example, based on a survey of 5,650 Americans in August, 50% said they support staggered reintroductions into the workplace. Three-quarters of respondents said temperature checks at work should be required.
There are a lot of questions that also arise regarding the legality and what an employer can versus can’t do as far as having employees come back to the office with coronavirus infection rates still high.
There are different factors that play a role in whether you can be required to go back to work.
Are You Considered An Essential Employee?
Every state sets its own guidelines for who would be considered an essential employee.
There are 14 categories in general, and some states recognize all of them, and some states add others to the list.
Essential employees in all states include healthcare workers, people who work in the critical manufacturing, and first responders. If you’re an essential worker, you have to go to work unless you’re sick or have been exposed to the virus.
You may not have to go to work if you’re covered by other laws like the Family and Medical Leave Act or the Americans with Disabilities Act.
Are You In a High-Risk Group?
If you have a disability outlined under the ADA, you may be qualified to have accommodations made for you during a pandemic. For example, this may mean your employee has to make provisions for you to work remotely.
If you have a mental health disorder such as anxiety and it would be made worse by your work environment, then this might require your employer to make a similar accommodation unless it would be unnecessarily burdensome on the employer.
If you have a serious health condition and you qualify for leave under FLMA, and your employer is covered by it, you may have 12 weeks of leave available to you.
However, just being generally concerned about a possible underlying health condition may not qualify you to stay home from work legally.
There was relatively new legislation passed in the spring called the Families First Coronavirus Response Act or FFCRA. Under this, there’s expanded leave for employees who work at businesses with 500 or fewer employees.
Under the FFCRA, there’s paid leave if an employee or someone the employee is caring for has to follow a COVID-related quarantine or isolation order recommended by a health care professional.
Are You Under Contract?
If you aren’t an essential employee but where you live has reopened, you can be required to return to work if you’re in an at-will state. The exception would be if you have a federal, state, or local employment contract.
Under OSHA guidelines, an employee might be able to claim that they are working in an environment where COVID-19 is such a health risk that they have a right to refuse to work. OSHA does protect employees from retaliation in certain situations if there’s imminent danger.
However, specific conditions have to apply.
It’s not entirely clear right now whether COVID would meet that standard. It’s a hazard but not one unique to the workplace or one created by the work itself, with the exception perhaps of industries like health care.
Other Legal Issues
Other legal issues that are coming up as far as employee rights now include whether or not an employer can take temperatures.
Typically under the Americans with Disabilities Act, an employer wouldn’t be able to take an employee’s temperature because it would be considered a medical exam beyond the bounds of employer rights.
When there’s a widespread or severe flu outbreak, it’s permissible, however. This would likely apply to the COVID pandemic too.
Finally, if you get sick at work, is your employer liable?
There is some pending legislation to address this and shield businesses from liability.
It’s not likely that employers would be liable for an employee getting COVID because it’s tough to prove where you actually got it from.
Overall, if you’re simply afraid of returning to work, you are probably not legally protected from being fired. There are some federal laws that might protect you given different COVID scenarios, but your employer may be able to legally require you to come to work barring those situations.
If you’re concerned, speak to your employer about the steps they’re taking to keep the workplace safe.
By Susan Melony