COVID-19 is referred to as the novel coronovirus as it is a new virus never before found in humans and never addressed by medical science. As to its impact on our legal environment, COVID-19 similarly, raises novel legal issues.
The pandemic is again surging to new heights and is predicted to further spike throughout the remainder of 2020 and into the new year. Many of us, especially those with underlying conditions may well fear going to work out of a reasonable concern over contracting this deadly disease. If you have a legitimate fear and are a high risk worker, what are your options?
The answer is that there are very few options available to most workers, especially those that are “at-will” employees. An “at-will” employee is an employee that can be terminated at any time and for any reason or even no reason at all, providing the termination is not in violation of applicable Federal or State statutes and protections.
In fact, there are certain protections under Federal law which may well apply to your unique situation.
For example, The Occupational Safety and Health Act (OSH Act) might well protect an employee who refuses to enter the workplace on the grounds that the workplace conditions are unsafe. Under OSHA, Employers are generally required to ensure that your workplace is free from recognized hazards that are causing or are likely to cause death or serious physical harm. If you can make the case that the workplace conditions are truly unsafe (regardless of any protections the employer might provide to you, e.g. enforced adequate distancing, partitions, or mandated wearing of masks, you can file a complaint with the Occupational Safety and Health Administration. However, you will have to prove a specific, provable, hazardous condition, which might be difficult to do. Simply fearing that you might get COVID would probably be insufficient.
Another consideration is that if you are fired for refusing to work, you will probably be denied unemployment benefits. The best thing to do if you are truly scared to return to your workplace during the Covid 19 pandemic is to discuss this with your employer and see if you can reach a mutual resolution of your reasonable concerns and your employer’s reasonable ability to operate the business.
You might also find relief under the Americans with Disabilities Act (ADA). This Act requires your employer to make reasonable accommodations for a disability which prevents you from performing a specific job. In seeking an accommodation from your employer, the first step is to establish that you are in fact “disabled” as a result of your underlying condition which subjects you to serious illness or death. This might be hard to prove if for example, you have diabetes or a heart condition (high risk for serious COVID disease) which, but for the threat of COVID, does not otherwise disqualify you from performing your job. If you can establish that a COVID high risk status is a disability, your employer will be required to make reasonable accommodations. Such accommodations might be allowing you to work from home, or establishing other protections such as partitioning your work space, allowing you to work from home, separating employee stations, etc.) The key word is reasonable. If you have a job as a check out clerk then it is obviously not reasonable to ask to be able work from home, but protective gear probably would be deemed reasonable depending upon the circumstances,
Family Medical Leave Act (FMLA) – Under the Family Medical Leave Act (applicable only to employers with more than 50 employees), your employer is required to allow you up to 12 weeks of unpaid leave if you or a family member become ill due to COVID-19. Upon your return the employer is obligated to return you to your previous position,
How do Covid 19 Quarantine Requirements Affect Employment? Most states have enacted laws which comply with CDC guidelines which mandate that a person exposed to someone with COVID-19, or who contracts the disease, must quarantine for a period of 7-14 days. It is very likely that under such situation, your employer could not legally terminate you for following this protocol.
What About The Vaccine – Can An Employer Mandate You Receive the Vaccine?
It is likely that a vaccine will be available to many Americans some time in 2021. Front line health care workers and nursing home employees and residents will be the first groups to be eligible to obtain a vaccine. If your employer requires that all employees receive a vaccine, are you allowed to refuse? The short answer is probably no, although these issues have not yet been decided by the courts as relates to the potential COVID-19 vaccines. Generally, an employer is able to establish conditions of employment including conditions related to the health and safety of employees. It is therefore highly likely that an employer will be able to require employees to be vaccinated as it would appear to facilitate the protection of all employee, vendors, customers, and others who come into contact with the employees. One caveat is that this requirement must be fairly enforced and should not single out persons for reasons such as age, sex, race, etc. However, it might be allowable to differentiate based on employee job functions and contacts with others. Exceptions to this general rule might be those who refuse vaccination due to established religious beliefs or other medical conditions which might be adversely affected.
As stated earlier, in such case the best idea is to candidly discuss these issues with your employer to see if an accommodation can be reached.
Bromberg Rosenthal, LLC has represented the interests of large corporations and individual employees on a variety of legal matters. The current pandemic raises new issues for which there are few laws and court decisions to be used as a guide to acceptable conduct from an employer or employee. In these uncertain times, with new and serious issues facing our work force, experience counts. Please feel free to contact this office to discuss these issues which affect both employers and employees.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
