There has never been a time when an employee’s right to work in a safe environment has been more threatened. The COVID-19 pandemic has affected every workplace in this country. The nationwide stay at home orders essentially converted employees in all non-essential industries to working remotely. As we now begin a transition to a gradual return to the workplace, the question about whether this can be done safely cuts across every industry in America.
Protecting the Vulnerable and Minimizing Risk
There is no “one-size fits all answer” to this question. Instead, the responsible path ahead depends on effectively addressing both the unique vulnerabilities of specific groups of employees and the precautions employers must take when requiring employees to return to work. If an employer does not effectively minimize the risk posed in either of these areas, an affected employee is well within their rights to refuse to physically return to the workplace and insist on a continued remote arrangement.
The first area takes into account what is undisputed about COVID-19 – its potential to be lethal is vastly higher for individuals who are older, and/or who have underlying medical conditions. This virus attacks the upper respiratory system, and individuals with any respiratory condition such as asthma, emphysema, COPD, or recent pneumonia or bronchitis, have a dramatically increased risk of dying from COVID-19.
Furthermore, individuals with compromised immune systems, whether caused by underlying medical conditions (such as diabetes) or recent or ongoing medical treatment such as chemotherapy, have a similar increased risk.
It is Your Right to Return to a Safe Work Environment
If you have any of these or similar conditions, regardless of your age, you can and should resist any directive to return to the workplace and seek an accommodation of continuing to work from home. This should be done in writing, with medical verification of the condition at issue. If the employer refuses to accommodate this request and terminates your employment when you refuse to return to the workplace, you will have a strong legal claim rooted in federal and state disability discrimination laws. This is true even in industries deemed essential, or those directed to stay open, such as meatpacking and food processing.
Employer Requirements to Keep Employees Safe
The second area involves the protections the employer makes to ensure that the risk of infection from COVI-19 is minimized. Both the written policies in place and the actual practice when you return to work need to effectively reduce risk of infection. Ensuring that appropriate “social distancing” is maintained (i.e. at least six feet of distance at all times between co-workers), that barriers, masks and other protective gear are used when this cannot be ensured and that temperature screening is occurring, are among the measures all employees can and should insist upon when returning to work. Furthermore, if the actual practice differs from the written policies, make a complaint, in writing, and you will be protected under the law if you refuse to work in this environment when your employer does not take prompt and effective corrective action.
You Have the Right to a Safe Workspace
Employees in this country have a right to work in a safe environment, with all known health and safety risks effectively minimized. Until this pandemic is eradicated with a vaccine or effective treatment options, no workplace with human interaction can eliminate the risk of COVID-19 transmission. Every workplace can and should, however, protect the most vulnerable in our population by accommodating their continued remote working relationship, and must also take steps to ensure that those healthy employees required to return physically to the workplace do so in the safest possible manner. If this isn’t occurring, the affected employee needs to assert these rights.