March 27, 2020 • By Dennis Beaver
The Coronavirus has become a sneak attack in slow motion on the American workforce. Fear has become the operative word, not only of falling ill, but the impact this virus is having on our economy, on jobs.
Employment law attorneys are swamped by calls from business owner clients, wondering what they are allowed to do in an effort to keep their employees safe and their doors open.
I ran the following questions by two attorneys in Bakersfield who specialize in Employment Law: Dan Klingenberger and Jay Rosenlieb. They provide a global perspective to these issues which challenge American businesses today.
Can your employer force you to go to work?
Klingenberger: “The answer would depend on the circumstances. If there has been evidence of spread in the workplace, for example, someone has it, an employer could not force the other employees to come to work in that environment, as there is a direct threat of contamination. But with no evidence exposure, or the exposure does not impact all employees, then, the employer can insist that people come to work.”
Rosenlieb: “In the event of an immediate or imminent danger, OSHA provides that an employee can refuse to work. Further, the NLRA protects concerted activity by employees. Concerted activity includes a refusal to work because of unsafe working conditions.”
Can you be fired/disciplined if you refuse to go to work?
I asked, “What if there is no legitimate reason to not come to work, but an employee still refuses to show up, could this result in discipline?”
Klingenberger: “Yes, that is possible, but in today’s COVID-19 environment, an understanding employer could tell an employee, ‘If you do not want to come to work for the time being, you may use vacation, sick leave or other time off benefits,’ if that is a benefit the employer offers. The employer also has to balance other considerations, such as fairness to other employees and the need to get the work done.”
Rosenlieb: “While an employer could take more serious action, those who care about their employees should work with them to address their concerns and find alternatives to being present at the office, if possible. And we are seeing that with a large increase in people working from home, tele-commuting.”
What should you do if an employee comes to work sick because they need the money?
Klingenberger: ““If an employee comes to work who is obviously ill and showing symptoms of Coronavirus, the employer should send the employee home because of the risk to others. If the employee misses work because of having the virus or must be quarantined, many states, including California, have made unemployment insurance benefits available for days missed or reduced hours that might not normally be available.”
Rosenlieb: “An employee who presents at work with symptoms of a contagious illness can be sent home. The employer is not obligated to provide work to an employee who presents with symptoms of a contagious disease. On the other hand, an employer cannot send an employee home simply because the employee is a member of a high risk group—65 years old and older or has underlying health conditions. This would be discrimination on the basis of protected class status.”
What happens if the governor or president orders you to shut your business? Do you have any options other than to follow the order?
Not only has the President issued Executive Orders which have shut down many businesses in the country, but state governors are also issuing similar mandatory orders. Constitutional lawyers will tell you that government has an inherent power and duty to protect the population, especially in areas of health.
Klingenberger:“The imposition of quarantine, shelter in place and business closure orders are examples of the state’s ability to exercise its police power. Failure to comply may be a misdemeanor and subject the company to fines. Time will tell whether tax and other forms of relief will be granted to help deal with the enormous financial losses.”
Rosenlieb “There is no choice but to follow those mandatory orders or face fines.”
Can you turn away a customer who is coughing?
Both lawyers agree there is no obligation to serve everyone, unless you are avoiding someone for clearly illegal reasons, such as race, religion or national origin. They equally believe a polite way of dealing with a customer who is coughing would be for restaurant employees to say, “We are concerned, given what is going on with the Coronavirus, if you will please step outside I will bring you the food.”
Do you have a legal responsibility to inform people you have come into contact with if you later test positive?
While neither attorney was aware of a legal obligation to personally informing people that you have been tested positive, they observed that health departments ask every person infected to list all the people they have been in close contact with.
And while I do not know of a legal duty in the United States of self-reporting to others, it is not much of a stretch to compare silence with those people who have been jailed for knowingly spreading herpes and aids.
To me, by knowingly exposing those around you to the virus could be seen as an assault and battery. History proves that correct with the story of Typhoid Mary, an Irish cook believed to have infected 51 people with typhoid fever, several of whom died.
If you are not familiar with her story, it is worth looking up, as you will find a cast of characters right out of a horror movie, including Mary herself who was aware of the danger she posed to others and yet continued to work as a cook, literally killing people.
She was the first person in the United States identified as an asymptomatic carrier of the disease. Because she would not stop working as a cook–exposing others to the disease– she was twice forcibly isolated by authorities, and died after a total of nearly three decades in isolation.
What is your legal responsibility if you start to get an inkling that you are getting symptoms?
Klingenberger: “I am not aware of a requirement in OSHA or various federal safety laws where someone is required to make this disclosure. Employees are always encouraged to disclose those things, and especially on the job injuries. There are can be ramifications if they don’t.
“For example, they hurt their back and do not disclose it for six months. Their workers compensation claim could be denied for a failure to report it in a timely fashion.”
Rosenlieb: “While not a violation of a law, if the company had a policy requiring employees who become ill with the flu, even the common cold, to report this to HR, and if that were violated, it could result in discipline for violation of an order.”
Say You Are Ordered to stay home–quarantened–By the Health Department. What would happen if you disobeyed?
Both attorneys agree that the employee could face termination.
What if you know people who are doing risky things on the job, exposing coworkers to harm, do you have a responsibility to do something about it?
And, once more, there was agreement by both Klingenberger and Rosenlieb as to what employers and employees need to do when faced with a coworker who cares little for his or her job colleagues.
“We all should hope that concerned coworkers would report dangerous behavior of whatever type, physical or health-wise,” commented Klingenberger.
“Today we all have a duty to each other to act prudently and safely. Any employee who puts coworkers in harms way should face potential termination. Our country is facing one of its greatest health threats in over a century. We need to watch out for each other more so than at any other time in memory,” Rosenlieb strongly maintains.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.