What you should know about returning to work during the COVID-19 Pandemic

As restrictions are lifted and companies and organizations go back to business as usual, here’s what employees need to know about returning to the workplace during the pandemic.

Employers’ liability during COVID-19

Health care providers in particular must follow federal safety guidelines to prevent contagion while other businesses and organizations don’t necessarily have to adhere to the same standards. It is up to localities and states to set standards for these workplaces.

The Occupational Safety and Health Administration (OSHA), for its part, has required employers to keep the workplace free of recognized hazards likely to cause serious physical harm or death to returning workers.

OSHA advises businesses to follow CDC guidelines, which instructs workers to keep at least six feet away from customers and each other, disinfect surfaces, do regular temperature checks, and provide hand sanitizers and PPE as needed.

Personal protective equipment (PPE) and safety measures

All employers are required to provide workers with PPE, though what constitutes reasonable PPE varies across industries. For example, agricultural workers might require a different quality PPE than a clerk who works at a supermarket.

If you have concerns about PPE rules and practices in your workplace, ask your employer about their plans to keep employees safe during the pandemic.

Filing complaints via the Occupational Safety and Health Act (OSHA)

As already mentioned, OSHA grants employees the right to refuse to go back to work if they have reason to believe that certain workplace conditions can cause death or serious imminent harm.

The General Duty Clause, in particular, requires employers to provide a safe workplace in addition to OSHA-approved workplace safety plans that vary with each state, and which set even higher standards for workers’ safety.

OSHA also has an anti-retaliatory clause, which means complainants can’t be demoted or fired for asserting their rights to a safe workplace. However, workers have 30 days to file claims of alleged retaliation.

Generally speaking, it can be difficult to prepare a COVID-related case under OSHA. To file a complaint, workers should be able to provide specific and concrete examples of safety violations pertaining to COVID-19 in the workplace.

As of December 2020, however, OSHA has proposed penalties amounting to $3,646,228 for 273 inspections exposing COVID-related violations among employers across the US.

These violations include employers’ inability to:

  • Comply with the General Duty Clause
  • Provide PPEs, medical evaluations, respirator fit tests, and training on proper respirator use
  • Implement written respiratory protection programs
  • Report injuries, illnesses, or fatalities
  • Record workplace-related injury or illness on OSHA forms

If you believe that your employer is in violation of OSHA and the General Duty Clause, schedule a consultation with Hogue & Belong Law.

Unemployment Insurance (UI) and job offers

It’s possible to lose your UI if you decide not to return to your go back to work and the employer can demonstrate that they have provided a reasonably safe environment for returning workers. You might be exempted for legitimate health reasons such as a compromised immune system.

You should also have job protection if you belong to a high-risk group who are likely to develop severe COVID-19 symptoms. If you’re getting chemotherapy, for example, you can get a doctor’s clearance stating that you need to self-isolate or work from home for your own safety.

COVID-19 and paid leave policies

Employers are mandated by law to grant workers paid emergency short-term sick leave benefits in addition to longer-term paid family leave benefits under the CARES Act and Families First Coronavirus Response Act

For instance, all public employers and private employers with fewer than 500 workers must provide up to two weeks of fully paid sick leave (worth up to $5,110) for workers who were unable to work due to quarantine or COVID-19.

They are also required to give up to two-thirds of two weeks’ regular pay (worth up to $2,000) to employees unable to work while caring for another person who was/is in quarantine as well as employees whose children’s daycare or school had been closed due to the pandemic.

In December 2020, the U.S. Department of Labor Wage and Hour Division (DOL-WHD) ordered Oregon agricultural operators to pay workers $11,418 in back wages after investigators found that they had wrongly denied paid sick leave to workers who had been advised by healthcare providers to self-quarantine following potential exposure to COVID-19.

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