Upset You Have To Go Back To Work During the COVID-19 Pandemic? Here Are Some Options.

The first known case of COVID-19 in the United States was diagnosed in January 2020. By March, the novel coronavirus had spread rapidly throughout several states and Governor Newsom issued a stay-at-home order for all of California.

In response to this order, millions of Californians were quickly shifted to remote work from home. Some companies have announced that their workers will telecommute at least through summer 2021 or longer in order to protect the safety and wellbeing of their employees and the general public.

covid-19 return to work

While most nonessential businesses have switched to entirely remote work when possible, other companies have asked their employees to come back to their physical workspace and work in person. If your boss has asked you to come into the office, you may be worried about your health and safety. What are your rights in this situation?

There are two ways that you may be able to refuse to return to the office during the COVID-19 pandemic: because the work is unsafe, or because you require a reasonable accommodation. Below, we outline California law on these options.

Refusing to Return to Work Due to Unsafe Working Conditions

Under California’s Labor Code, workers have the right to refuse to perform work if it is unsafe. Generally, this means that performing the work would violate a health and safety standard or order and would create a real and apparent hazard to the employee and their colleagues. Employers are prohibited from firing workers who refuse to perform unsafe work. If they do so, then the terminated employee(s) can file a lawsuit against them to recover lost wages.

There are many situations where it is clear that work is unsafe. For example:

If an employer asks workers to remove asbestos from a construction site without the proper protective equipment, that would be obviously be hazardous. 

But when is a person’s work unsafe due to COVID-19?

The key in this situation is whether you have an objective reason to believe that your workplace is unsafe due to the coronavirus. Notably, this cannot be based on your generalized fears about the virus nor can it be based on mere speculation that infected employees might be at work. Rather, you must be able to point-to a specific fact or reason underlying your concerns about workplace safety.

For example:

Mary works as a bookkeeper at a flooring business that is open to the public. Her boss, Joe, is angry about Governor Newsom’s mask mandate and refuses to comply with it. He tells his employees that they are not allowed to wear masks at work, and even has a sign on the door informing customers that it is a “mask free zone.” Here, Mary has a specific, objective reason to believe that her work is unsafe: no one at her workplace is allowed to wear a mask. In this situation, Mary may have a right to refuse to return to work.

If you change the facts slightly, then outcome may change:

Mary’s boss Joe mandates customers and employees to wear masks but does not strictly enforce the rule. Mary has a lot of anxiety about the coronavirus, and thinks that being in the office may be unsafe if employees refuse to wear their mask, even though she has her own office with a door that closes. Here, Mary’s belief that her work might be unsafe will likely not be considered objective without a more concrete, observable safety issue.

Requesting a Reasonable Accommodation

While much of the science around COVID-19 is still developing, we have learned a number of things about the virus. In particular, we know that certain groups of people are at high risk for serious (or even fatal) complications if they contract COVID-19. According to the Centers for Disease Control and Prevention (CDC), high risk individuals include:

  • Older adults
  • Pregnant people
  • People with cancer
  • People with chronic obstructive pulmonary disease (COPD)
  • People with heart conditions
  • Anyone whose immune system is weakened due to an organ transplant
  • People who are obese
  • People with sickle cell disease
  • Smokers
  • People with Type 2 diabetes
 

If you fall into one of these categories, you may not consider yourself to have a disability. But because your risk of becoming severely ill due to COVID-19 is substantially higher, you may choose to request a reasonable accommodation under the Americans with Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA).

According to the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for administering the ADA and other laws, employers may be required to allow an employee to continue to work remotely — or to take other precautions — if they are at high risk for COVID-19. If an employee falls into this category, then they should request a reasonable accommodation (such as continuing to work from home) from their employer. The company is then required to engage in an interactive process with the employee.

Keep in mind that employers are not required to provide you with the specific accommodation that you request, particularly if it creates an undue hardship for the business.

For example:

If you cannot perform an essential function of your job while working remotely, then your employer may not be required to allow you to continue remote work. Instead, they may provide a different accommodation, such as a plexiglass shield or even giving you an office with a door that closes to protect you from exposure to the virus.

You may also be entitled to perform remote work as a reasonable accommodation under the DFEH. If an underlying medical condition qualifies as a disability, then the employer must reasonably accommodate the employee, providing that doing so would not create an undue hardship for the company.

If you request a reasonable accommodation pursuant to the ADA or DFEH, and your employer refuses to engage in an interactive process with you, you may be able to file a lawsuit against them. While not every request for a reasonable accommodation must be granted, at a minimum, your employer must work with you to determine your needs and if there is an accommodation that can be made. If you believe that your employer has violated your rights, reach out to us here at Odell Law.

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