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  • Kevin Osborne

"See You Monday"

Updated: Jun 22, 2020

Restrictions on businesses related to coronavirus are gradually lifting and business owners are itching to re-open their doors. With re-opening, workers are getting see-you-Monday phone calls from their employer. While some are eager to get back to work, a majority of Americans believe it is still too soon.

This post explores the options and consequences for California workers concerned they cannot or should not go back to work. But first, a brief disclaimer. Lawmakers are moving quickly in the environment of the COVID-19 pandemic and there is talk of new legislation almost daily. Moreover, the way courts will interpret the law as it exists is likely to change because of the disease. To get the best, most up-to-date information, readers should contact an attorney or legal aid organization. With that said …

Options for Workers with Concerns for Health and Safety

For workers worried that returning to work may expose them to health risks, the news is mixed.

Any business in California must follow the baseline rules set by the state, federal, and local government. Generally, these rules require employers ensure the workplace is safe and healthy (Lab. Code §§ 6400, et seq.). There are more specific rules from

California’s Occupational Safety and Health Administration (Cal/OSHA) requiring protection for workers exposed to airborne infectious diseases. These include personal protective equipment (i.e. masks, gloves, etc.) to keep workers safe while performing their jobs. The type of equipment required during a COVID-19 outbreak is based on the risk of infection while working and the tasks that may lead to exposure. See 8 CCR § 5199 for an example of a regulation designed to protect certain high-risk workers. Cal/OSHA has also offered “guidelines” for protecting workers, but these are not required.

If a worker has a disability, such as a compromised immune system caused by cancer, HIV/AIDS, or another condition, their employer may also be required to make “reasonable accommodations” under the Fair Employment and Housing Act and the Americans with Disabilities Act. Whether a condition qualifies as a “disability” is subject to interpretation. While the common seasonal flu can compromise a person’s immune system, it is not likely to be considered a disability. Pneumonia, on the other hand, would more likely be treated as a disability. Additionally, whether the accommodation made by an employer is “reasonable” depends on various factors, including the nature of the disability, the specific workplace environment, and the duties of the job. It should be noted that a worker requesting an accommodation must disclose the nature of their disability to their employer, a step some workers may not be willing to take.

If an employer fails to meet the requirements of the law and refuses to respond to worker complaints, workers have several options.

· Union members are encouraged to contact their union officials first, as many collective bargaining agreements require this as a first step.

· Non-union workers and union members whose complaints to union officials go unaddressed can take action by filing a complaint with the Department of Industrial Relations. Complaints are kept confidential to prevent retaliation.

· Workers can contact one of the many low-cost or free workers’ rights clinics in California, including Legal Aid at Work , Bet Tzedek , or the Katherine and George Alexander Community Law Center.

· Workers can contact a private law firm that litigates workers’ rights issues. Consultation with such firms is usually free of charge. Where the rights of a large group of workers are violated, a case may be pursued as a class action. EKO litigates workers’ rights class actions.

· Finally, workers who quit their jobs because their employer has failed to follow the law, creating a hazardous work environment may be eligible for unemployment benefits from the State

Many workers may remain reluctant to return to work even though their employer follows health and safety rules and they have no condition requiring accommodations. They may simply be worried that they will become ill or expose their more susceptible loved ones to the virus. While such concerns are reasonable, workers in this situation have far fewer legal options. If a worker whose employer has offered suitable work is let go because they refuse to report to duty, they will likely be ineligible for unemployment benefits. This even applies to the expanded Pandemic Unemployment Assistance (PUA) benefits available under the CARES Act. According to the federal government’s CARES Act FAQ site, “voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible for PUA.”

Options for Workers with no Childcare

Almost half of all working American adults have children under 18. When called back to work, these parents face a unique challenge. Public and private schools, pre-schools, day cares, and summer camps mostly remain closed and will stay closed for weeks or months. Parents who planned to work while their children were in school and camp now have children at home with no childcare options available.

Workers who cannot leave home because their child/dependent attends a school/facility that has closed are eligible for PUA benefits in California. Those who work for companies with less than 500 but more than 25 employees and some smaller companies may have the option for paid extended family medical leave or sick leave if a dependent’s school is closed.

What happens when an employer demands an employee return to work but the employee has no childcare – can the employee be fired? Termination in this scenario would probably be unlawful. Under the Families First Coronavirus Response Act, which went into effect on April 1, 2020, employers of more than 25 workers must allow a period of leave for a worker whose child’s school is closed. They must then offer the same or equivalent position upon return to work once the period of leave ends. Even small companies (those with 25 or fewer employees) must make a reasonable attempt to return the worker to the same or a similar position.

Options for Workers Whose Unemployment Benefits Pay More than Their Wages

Numerous reports indicate employers are concerned they cannot compete with “unemployment on steroids,” another name for PUA benefits. The concern being voiced is that workers will refuse to return to work because they get more from unemployment than from their regular job. This is false. If an employer asks an employee to come back to work, and the employee refuses (without a valid reason such as those outlined above), the employee will lose their unemployment benefits entirely.

Summary

In conclusion, employees concerned about returning to work have options. They can rightfully demand a safe place to work and have a number of tools at their disposal to enforce this right. Refusing to go back to work simply out of fear of exposure to the virus, however, could mean the loss of a job and ineligibility for benefits. Workers with children whose schools are closed should have a high level of job security and access to public benefits. While those who think they are better off turning down work because public benefits pay better are borrowing trouble as they will likely lose both their job and their benefits.

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