As stay-at-home orders are lifted and as more businesses reopen, some employees are returning to work. While employees welcome the opportunity to be productive wage earners, they also have legitimate concerns about their right to work in a safe workplace that is free from discrimination.
Here are some general principles that employees should keep in mind when they are invited to return to work — or told that they no longer have a job.
Safety in the Workplace
Media reports suggest that some employees are not returning to work because they fear becoming infected with the coronavirus. That fear is understandable. There are, however, a couple of legal principles that employees need to keep in mind.
First, employees who do not have an employment contract, are not union members, and do not have the civil service protections of government employment are usually classified as “employees at will.” Under normal circumstances, an employee at will can be fired for refusing work. Employees who simply don’t want to take the chance of leaving home will likely have no legal protection if they are fired for failing to return to work.
These are not normal times, however, and there may be circumstances that permit an employee to refuse work. The Occupational Safety and Health Act is a federal law that requires employers to “assure safe and healthful working conditions” for employees.
The Act requires a place of employment to be “free from recognized hazards that are causing or are likely to cause death or serious physical harm to . . . employees.” The risk of a COVID-19 infection may be a “recognized hazard,” although no court has yet decided whether the coronavirus is “likely to cause death or serious physical harm to employees.” However, federal guidelines encourage employers to protect their employees from the known risks associated with coronavirus.
Given the risks associated with the coronavirus, responsible employers are providing personal protective equipment (PPE) to employees who come into regular contact with customers, vendors, or other employees and who cannot practice social distancing. If the risk of a COVID-19 infection is significant, employers may be required to provide PPE to employees who need protection.
Depending on the nature of the job, PPE might include gloves and a face mask. In healthcare occupations and other jobs that require close physical contact with people who are likely infected, PPE includes coveralls, a respirator, and a face shield or protective eyewear.
When employees do not have direct contact with the public, employees might expect their employers to reconfigure the workplace to assure that social distancing can be practiced. It may be necessary to move desks or workstations farther apart or to erect partitions or movable walls to prevent easy transmission of the virus among co-workers.
Employees who feel their employers are not protecting them from risks can file a complaint with the Occupational Safety and Health Administration (OSHA). Although OSHA has been swamped with complaints, filing the complaint is not a futile act. An employee who files a complaint is protected from retaliation. That means that employers cannot fire employees because the employee complains to OSHA about the lack of PPE or unsafe working conditions.
Discrimination and Harassment
Employees who were experiencing harassment or discrimination because of their gender, race, nationality, disability, age, or membership in some other protected class might be concerned that the harassment or discrimination will resume when the business reopens.
Fortunately, no laws that prohibit employment discrimination have been suspended because of the pandemic. Unfortunately, unscrupulous employers might use the pandemic as an excuse to discriminate or retaliate against employees.
Employers may have legitimate reasons to reduce their workforce. No law prevents employers from firing at-will employees. Civil rights laws nevertheless prohibit employers from firing employees because of their membership in a protected class.
If an employer decides to reduce the workforce by firing employees who speak with an accent or who have darker skin than the employees who remain employed, there may be reason to suspect that the fired employees were unlawfully targeted because of race or national origin. If an employer fires female workers while retaining males, or fires older employees while retaining those who are younger, the differing treatment may be evidence of sex or age discrimination.
The law allows terminations to be based on seniority or other neutral criteria, but not on membership in a protected class. An employment lawyer can review the evidence and determine whether an investigation of the employer’s motive for terminating an employee is warranted.
In addition, civil rights laws prohibit taking any harmful action against an employee because the employee has complained about discrimination or harassment. If an employee complained about being sexually harassed and was then singled out for termination in an alleged “reduction in force,” an employment lawyer might decide that there is strong evidence of unlawful retaliation.
Seeking Legal Relief After the Quarantine Ends
Some employees who faced discrimination and harassment before the pandemic will return to the same atmosphere of intimidating and offensive conduct that they coped with before they began to stay at home.
Harassment based on sex, race, national origin, or any other protected characteristic is unlawful when it substantially burdens an employee’s ability to work. When a supervisor is constantly asking an employee to go on a date or is sharing lewd pictures on a cellphone, the employee’s priority to is make the harassment stop. The same is true when co-workers routinely use offensive language to badger employees because of their race, nationality, or gender.
In many cases, an employee’s best protection against harassment and discrimination is to complain about it. If the employer has a workplace harassment policy, following the employer’s procedure for reporting harassment is usually a smart starting point. Retaliation for reporting harassment or discrimination is unlawful.
When complaining about harassment is ineffective, or if an employee is simply unsure of how to proceed, it makes sense to get legal advice. An employment law attorney can help employees understand how their right to be safe and free from discrimination and harassment can best be protected.