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If you feel unsafe to return to work, you may have a few options. However, California is an at-will state, meaning your employer could fire you at any time. Of course if an employer violates anti-discrimination laws or federal or state laws they may face penalties. Also, according to California’s Division of Occupational Safety and Health Administration Cal/OSHA employers must keep the jobsite safe for their employees. In the event a worksite is not safe, an employee may file a complaint with their employer or Cal/OSHA without fear of retaliation.
Cal/OSHA also provides that employees may refuse to work if they feel they are in “imminent danger.” OSHA defines “imminent danger” as “… any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” They have also defined COVID-19 as a hazard in the workplace which further qualifies employees to refuse to go to work when their place of employment is unsafe.
You may also be eligible to refuse going into work by asserting your rights under the Families First Coronavirus Response Act (FFCRA). This was signed into law on March 18, 2020 and provides emergency paid sick leave to employees who meet the requirements. This would entitle you to up to 80 hours of paid sick leave on top of any sick leave you currently have accrued with your employer.
Additionally, the Family Medical Leave Act has also been expanded and can provide up to 12 weeks of protected leave to those who qualify (FMLA).
There may be other laws or statutes that afford employees the right to refuse going to work if they feel unsafe. Please check your state and local laws to learn your rights as an employee.
If you feel that your employer is not following the guidelines provided by the Centers for Disease Control and Prevention (CDC) you have a few options. First you should address it with a supervisor or manager at your place of employment, including, filing a complaint with your employer’s human resources department, if necessary.
If nothing changes you should document all violations that you notice and file a complaint with your local OSHA office. As a last resort, you could inform your local law enforcement (first check that local ordinances have mandated law enforcement to enforce the guidelines), many counties have given law enforcement the duty to follow up and enforce the guidelines issued in their jurisdiction.
The National Labor Relations Board (NLRB) also provides protection to most private sector employees who act together to improve their employment terms and conditions. A few examples offered by the NLRB on how to collaborate with co-workers to improve the safety of your work place are talking with other employees about the present safety issues, participating in a concerted refusal to work in unsafe conditions, and even taking the issues to the media. You can also file a charge against your employer with the NLRB.
As you can see, there are various options for employees to take action when their employer is not following the guidelines set by the CDC. For accurate information in your area, look up the state and local laws in your area and reach out to an attorney for further guidance.
If you return to work and the employer is not offering hand washing breaks and you notice other co-workers not socially distancing, you should first take care of yourself—make sure to wash your hands, wear the appropriate personal protective equipment (for example, gloves and a mask), and keep yourself socially distanced. It is also recommended by the CDC to use hand sanitizer containing at least 60 percent alcohol in the event you cannot wash your hands. After taking care of yourself, you could inform your employer and file a complaint with them, if necessary. If this does not fix the safety issues, you could escalate the issue with your local OSHA office, and, where applicable, alert local law enforcement.
If you feel safe at work, but not while commuting thereto you should first speak with your employer regarding any available options they can provide. An option recommended by the CDC is to ask your employer to move your shift a few hours to allow you to commute during less busy times. If there are no suitable options with your employer, you could look at options that minimize close contact with others, for example, you could walk, bike, drive alone or carpool with a member in your household.
Employers are required by state law to provide a safe and healthy workplace. If you feel your place of employment is not safe, you have the right to file a complaint with your employer without fear of termination. However, in the event you are fired because you filed a complaint, you have options. You can file a complaint with any of the following agencies, as well as, file a civil lawsuit against your employer:
Please check your state’s laws to determine specific information regarding filing safety complaints against an employer.
If you did not contract COVID-19 while at your place of work then you would not be eligible for workers’ compensation. Please check the workers’ compensation laws in your state to determine your eligibility.
You may be eligible for workers’ compensation benefits if you contracted a COVID-19-related illness at work. On May 6, 2020, Governor Gavin Newsom signed executive order N-62-20 which provides that California employees who work outside of their home at the direction of their employer between March 19, 2020 and July 5, 2020 and test positive for COVID-19 within 14 days of working at their jobsite are presumed to have contracted COVID-19-related illness at work for the purpose of awarding workers’ compensation benefits.
Although the time frame for the presumption has passed, employers are encouraged to continue with a similar process until more guidance is provided. However, there is pending legislation, Senate Bill No. 1159, that could codify the presumption made in Executive Order N-62-20 to cover employees through part of 2024. Please check the workers’ compensation laws in your state to determine your workers’ compensation eligibility.
Based on age alone, an employer may not prevent you from coming to work, unless the employer is treating all other employees the same. An employer cannot make decisions regarding employees based on discriminatory reasons, for example, not allowing you to come to work because you are in an older age group more susceptible to COVID-19. While employers have the right to take employee temperatures, test employees for COVID-19, and send them home if they are a safety risk to others, this must be done on a non-discriminatory basis.
If you “give” COVID-19 to someone by going to work, even though you believe your symptoms are similar to COVID-19 and a co-worker then contracts it, the co-worker may have a potential lawsuit against you. However, the proof required by your co-worker to win such a lawsuit would be extremely difficult to collect. If the co-worker decided to bring a lawsuit against you, it would likely be brought as a personal injury action. This would mean your co-worker would have to prove that you did something wrong, and that your conduct is a substantial factor in causing their harm, amongst other factors. In addition, because COVID-19 is rampant in many communities it would be very expensive and challenging to prove one specific person gave COVID-19 to another.
Although, a sure way to avoid this kind of lawsuit against you would be to always wash your hands (pursuant to the CDC’s guidance) and always act according to the laws and guidelines given by the federal and state governments, as well as their respective agencies. Acting negligently or recklessly may expose you to legal consequences, including being sued personally. As always, laws vary by state—check your state and local laws for more information. Your safest course of action is to stay home and away from your workplace and other public places if you are exhibiting any symptoms of COVID-19.
If an employer suspects you have symptoms of COVID-19 they can send you home. Based on guidance released by the Center for Disease Control (CDC) and the US Equal Employment Opportunity Commission (EEOC), employers may send employees home that pose a health and safety risk to others, including employees who show symptoms of COVID-19. However, employers must adhere to federal and state anti-discrimination laws or they may face penalties—employers must treat all employees the same.
Currently, there is no vaccine approved by the FDA to vaccinate against COVID-19. In a publication released by the Equal Employment Opportunity Commission (EEOC), Pandemic Preparedness in the Workplace, they state employers subject to the ADA (15+ employees) cannot force those with valid exemptions to vaccinate. The EEOC goes on and asks employers to encourage rather than force employees who do not qualify for an exemption to get vaccinated. Although there is no clear guidance on whether you can be forced to vaccinate, it is always best to check your state and local laws and seek guidance from an attorney.
At Gomez Trial Attorneys, we care about our community. We take COVID-19 seriously. If you believe you have a coronavirus case, the team at the Gomez Trial Attorneys is always here to help you and fight for you!
Gomez Trial Attorneys
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San Diego, CA 92101
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