Posted March 26, 2020
As seen in USA Today
by Dalvin Brown USA TODAY
Michelle Sylvester refuses to go back to work because she doesn’t want to risk spreading coronavirus.
Sylvester, a Long Beach, California-based hairstylist, said most of her clients are over 75 years old. The salon she works at remains open, but she is staying home until health agencies say the COVID-19 crisis is over.
“I can’t put my life in danger and their lives in danger for a couple of dollars,” Sylvester said.
As an independent contractor, she’s well within her rights to avoid showing up for work without risking her job. But are you?
As the coronavirus pandemic ramps up, workers might be wondering what rights they have if (or when) their higher-ups request that they return to the office. And with President Donald Trump pressing for the economy to be “opened up and just raring to go by Easter,” one of the most pressing questions is: Can your boss actually force you to work during a pandemic?
Experts say the answer is no, but the laws aren’t so clear-cut.
“The answer depends on the job you have,” said Richard Reice, a lawyer who heads the labor enforcement division at the law firm Michelman & Robinson.
If your local government defines your role as an “essential,” you may have to comply with your employer’s wishes or risk termination.
“If you are performing an essential job, like a pharmacist at a local CVS, a police officer or sanitation worker, your employer can say to you should come to work,” Reice said. “If you don’t, that would be insubordination, misconduct or quitting.”
Federal guidelines allow state and local authorities to decide which businesses are essential during crises. Generally, grocery store workers, food laborers, medical staff along with utilities and transportation workers are considered essential. Government workers, law enforcement and emergency personnel are also included.
What protections do I have?
And there are general workplace protections for nonessential workers.
If there aren’t local mandates for you to show up in the wake of coronavirus, which has killed more than 19,000 people and sickened thousands of others, you’re probably within legal grounds to stay home if you’re near a hot zone.
The Occupational Safety and Health Administration has a “General Duty Clause” that requires workplaces to offer environments that are “free from recognized hazards that are causing or likely to cause death or serious harm to employees.”
“COVID-19 counts as something that is likely to cause serious injury or death,” Reice said.
Also, employers are inclined to figure out all other options such as telework and temporary closures before asking people to leave their homes. Otherwise, managers risk losing a huge chunk of their workforce, according to experts in the field.
“Most employers are being very sensitive to this issue right now,” said Gary Eidelman, a Baltimore-based employment and labor attorney. “Many are struggling to stay afloat. So they are letting more people work from home and adding extra safety measures like sanitizing and social distancing where applicable.”
It’s also costly for employers to fire responsible staffers and find skilled laborers on short notice, though, there’s a coronavirus-related caveat.
The spreading respiratory illness has led to a large pool of newly unemployed people looking for jobs as restaurants, movie theaters and hotels close and curb operating hours.
“It may come to a point where if employees choose not to come to work, they run the risk that there are people waiting in line to take their jobs,” Eidelman said. And that’s a risk some people are willing to take.
John Fryatt, a restaurant manager in Clearwater Beach, Florida, is getting paid for the next four weeks as his job closed its doors temporarily due to coronavirus.
Fryatt said his boss is thoughtful, “but if I were asked to go back in right now, I’d have to say, ‘No.’ He’d have to lay me off, fire me or just be OK with it.”
On March 23, several dozen employees at a Perdue Farm plant in Georgia abruptly walked out, citing coronavirus concerns, according to local media. Perdue issued a statement calling the situation “fluid” and the chicken manufacturer said it has taken to help keep its workers safe.
Does my boss have to tell me if someone at work gets it?
“The general answer is yes,” said Edgar Ndjatou, executive director of employee advocacy group Workplace Fairness.
But they cannot legally reveal the infected person’s identity without written consent, according to the Health Insurance Portability and Accountability Act. HIPAA released guidelines employers and health agencies should follow when it comes to coronavirus contagion.
Only official health agencies like the CDC or health departments may disclose identifiable information without a patient’s authorization.
What should I do if my boss doesn’t listen?
If your boss is pressuring you to come in and your workplace is at high-risk for coronavirus, you can file a confidential safety and health complaint and request an OSHA inspection.
“You could contact your local government and let them know,” Ndjatou said. In the wake of the spreading outbreak, “some local governments are using police to enforce business orders.”
You can also leverage social media to raise awareness about your boss’ work practices, Ndjatou said.
“In this day and age, everyone has access to the internet,” Ndjatou said. “If you feel comfortable, you can alert the public about this employer’s bad behavior in the midst of a public health pandemic.”