Analysis

4 Questions Workers Have About Reopening In A Pandemic

By Braden Campbell
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Law360 (May 22, 2020, 4:06 PM EDT) -- As employers in many parts of the country get back to business, workers are pondering tough questions, including whether they can refuse to work if they feel unsafe and what happens to their unemployment benefits if they do. Here, Law360 looks at four key questions workers have on their minds.

Can I Refuse to Report?

Employment is "at will" by default in the vast majority of U.S. states, meaning employers can fire workers for pretty much any reason at any time unless the worker has a contract saying otherwise. So employers are generally free to fire workers who refuse to work because of virus concerns. However, there are some exceptions to this rule, University of North Carolina School of Law labor professor Jeffrey Hirsch told Law360.

Salesperson Valerie Serrato, left, shows a dress to a customer Wednesday at a boutique in Visalia, California. Workers across the country are faced with difficult questions as states lift COVID-19 restrictions and let businesses reopen. (AP Photo/Marcio Jose Sanchez)

The National Labor Relations Act gives workers — union or not — a job-protected right to engage in "concerted activity for the purpose of mutual aid or protection," which covers a range of activity from spontaneous walk-outs to coordinated strikes. If workers are fired for protesting unsafe conditions, they can complain to the National Labor Relations Board. But there are some limits to this shield, Hirsch said.

The NLRA protects group-based activity, so it would not cover workers who refuse to work solely to protect themselves, he said. Though an employer can't fire striking workers, it can permanently replace them. And workers who strike or refuse to work must have a reasonable fear to be protected.

"If it looked to the board like these employees are just full of it," the board likely would not order their reinstatement, Hirsch said. "But to the extent they've got reasonable good-faith concerns that their working conditions aren't safe, they're likely to be protected."

Workers may also be able to avoid a return to the workplace under the Americans with Disabilities Act, plaintiffs attorney David Blanchard said. The law requires employers to provide disabled workers "reasonable accommodations" that let them do their jobs as long as they don't pose "undue hardships" for the business. If a worker has a condition that puts them at high risk for COVID-19 complications, their employer may have to let them take leave or work remotely, even if their office has reopened.

"I think we're going to see a lot of wise employers look at [telework] as an easy go-to reasonable accommodation," the Blanchard & Walker PLLC attorney said.

Do I Lose Unemployment If I Won't Go Back to Work?

Unemployment insurance has been a lifeline to tens of millions of workers who have lost their jobs during the pandemic, especially after the federal government boosted workers' weekly benefits by $600 in the Coronavirus Aid, Relief and Economic Security Act. In many cases, workers lose these benefits if they're called back to work and refuse. But some may not.

While some state unemployment offices have told employers to report workers who refuse requests to return, others have been more lenient. For example, North Carolina has said workers can refuse to work and continue to collect benefits if they're at high risk for severe complications from COVID-19 or live with someone who is.

And workers may be able to keep collecting if they refuse to report to an unsafe workplace, said Michele Evermore, an unemployment analyst with the National Employment Law Project, a workers' advocacy group.

The federal government has said workers can't collect if they refuse "suitable work," which gives them some leeway to refuse unsuitable work. What makes a work unsuitable is not clear, however.

The Social Security Act, which controls regular unemployment benefits, looks to the "prevailing conditions of work" to determine suitability, Evermore said. Under this standard, work would not be suitable if safety conditions are worse than at other comparable places of work. The Stafford Act's Disaster Unemployment Assistance program, on the other hand, says work isn't suitable if it presents an "unusual risk to the health, safety or morals of the individual." 

But which standard applies and how they relate to the risks posed by the pandemic is unclear.

"It's a little bit up in the air right now," Evermore said. "We don't have clear guidance from the administration so far."

And even if workers have a right to continue collecting unemployment, it may not be easy to assert it, Evermore said. If workers lose benefits because of a refusal to work, they would have to appeal to state unemployment offices strained by millions of sudden filings. 

"That changes the calculus for the worker also," Evermore said.

Does My Employer Have to Protect Me?

Federal and state laws require employers to provide their workers a safe workplace, but they set few hard-and-fast rules for work during a pandemic.

The Occupational Safety and Health Act requires employers to follow certain safety standards put out by Occupational Safety and Health Administration, some of which may apply to COVID-19. For example, OSHA requires employers to provide workers respirators or other personal protective equipment if job hazards demand it, though the agency has given most non-health care employers leeway not to provide masks during the crisis. Another rule requires employers to provide hand-washing facilities to nonmobile workers. And some employers may be subject to stricter rules set by state safety offices, such as a Cal/OSHA rule requiring employers to protect workers from airborne diseases.

The Occupational Safety and Health Act also imposes a "general duty" to keep the workplace "free from recognized hazards" that could cause workers serious harm.

In theory, these rules require employers to protect their workers from COVID-19. And Labor Secretary Eugene Scalia has pledged to wield them against employers that don't implement reasonable protections. But so far, this pledge has been "kind of hollow," said Ann Rosenthal, the former head of the U.S. Department of Labor office that provides OSHA legal support and represents it in the federal appeals courts.

"As far as I can tell, they haven't taken any enforcement action," said Rosenthal, who now advises workers' advocacy groups on OSHA issues. The agency has reported fielding more than 4,200 complaints to date and closing more than 3,000 investigations, but has not announced any citations, she said.

Still, to the extent they feel their employers aren't providing a safe workplace, workers can file complaints with OSHA or their state's safety enforcer. This triggers a probe that can lead to a citation, and blocks employers from retaliating against workers who blow the whistle.

If workers feel they've been retaliated against, they have 30 days to complain to OSHA. The agency then investigates, and if it finds merit to the worker's claim, attempts to settle the dispute before filing suit if it can't. But the OSH Act's whistleblower provisions are weaker than those of other laws because workers must rely on the DOL to press their case, and they can't get their jobs back or other interim relief while disputes play out, Rosenthal said.

"When it works, it's good protection," Rosenthal said. "It's just a lot of hoops you have to jump through before you get there."

What Happens if I Get Sick?

Workers who get coronavirus or can't work because they have to take care of family members may be able to take paid time off, even if their employer doesn't ordinarily offer paid sick time.

The Families First Coronavirus Response Act requires employers with fewer than 500 workers to provide short- and long-term leave to workers who come down with COVID-19 or can't work for certain reasons tied to the virus. 

Though some states have laws making employers provide paid sick and family leave, FFCRA is the first-ever federal mandate. However, it leaves out a large portion of the workforce — the law doesn't cover about 6.8 million workers at large firms who don't get paid leave, according to an Economic Policy Institute analysis of DOL data.

Under the law, workers can take two weeks off at full salary — up to $511 per day — if they're subject to a government isolation order, their doctor has told them to self-quarantine or they have COVID-19 symptoms. They can also take off at two-thirds pay — capped at $200 a day — to care for family members who are subject to quarantine orders or children whose schools have closed. Workers whose school-age kids are now at home can also take off up to 12 weeks at partial pay to care for them.

The law also makes it illegal for employers to retaliate against workers who request paid sick days or leave under FFCRA and lets workers sue if they've been underpaid or unfairly denied time off.

These protections are robust because they're built on existing law, said Blanchard, the plaintiffs attorney. The two-week benefit is built on the Fair Labor Standards Act, which sets pay standards, and the leave benefit is based on the Family and Medical Leave Act, which provides workers unpaid, job-protected time off to deal with medical issues.

"Practitioners that are skilled and comfortable with the FLSA and the FMLA should be able to pretty quickly and appropriately get into court and correct these violations," Blanchard said.

Workers who get sick on the job may also be able to collect workers' compensation, a state-administered payment for injuries or illnesses that stem from work, UNC Law's Hirsch said. But workers would need to "show some sort of proof or evidence that they likely caught [COVID-19] at work," which may be difficult, he said.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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