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Is Your Work Doing Enough To Protect You From Coronavirus? We Talked To An Employment Lawyer

officebuilding.jpg
Gabriel C. Pérez
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KUT
The parking lot of an office building in South Austin is nearly empty on a recent weekday afternoon.

No matter what you do (or did) for a living before the COVID-19 pandemic, it's probably safe to say your work life has changed dramatically since its arrival. If you haven’t lost your job, you may be working from home. Or you may find yourself working out in the world, in sectors deemed “essential” by stay-at-home orders.

Many people in that last group are still waking up and heading to their jobs. Some of them have come to KUT with concerns about their safety and their rights.

We've tried to answer some of their questions below, with the help of Kell Simon, an Austin lawyer who represents employees in workplace legal fights. Unfortunately, the answers aren't always clear.

My employer says we are an essential service, how do I know that’s true?

The City of Austin maintains a list of which businesses are considered essential and nonessential. In an email, city spokesperson Sara Henry wrote that it's up to each business to decide whether it is essential “based on the guidance provided.”

“The City of Austin is not providing individual businesses legal advice on whether their business should remain open or close during this time," she wrote. “If someone calls Austin 3-1-1 about a job function or industry that is not on the list, we are working with the City’s Law Department to get clarification on industries and job functions.”

A waste service employee picks up garbage in a residential neighborhood of Austin.
Credit Gabriel C. Pérez / KUT
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KUT
Trash removal is considered an essential service under the city's stay-at-home order.

Simon says that leaves “a lot of gray area” for workers and employers. The fact that many workers are operating under different layers of city, county, state and national emergency rules only exacerbates that uncertainty.

“Ultimately, the folks who are going to be in the position of making the decision about whether businesses are deemed essential or not are the judges who end up hearing citations that get issued to people or businesses that are in violation,” he says.

One catch there: Of the around 2,000 complaints the city has received about people or businesses violating the emergency orders, the city has not issued a single citation.

My employer is not doing enough to protect me from COVID-19 at work. What are my rights?

The emergency order signed by Austin Mayor Steve Adler says that “to the greatest extent feasible, essential businesses shall comply with social distancing requirements.”

What the order means by “social distancing” is pretty clear – staying 6 feet apart from others, washing hands and avoiding physical contact.  

What is not clear is what the order means by “to the greatest extent feasible.”

“At this point, there's not some great body set up to make determinations about what the extent of feasibility is,” Simon says.

He believes some cases could be clear-cut.

For instance, if an employer demands an employee remove a face mask.

"The CDC recommends cloth masks for anybody out in public,” Simon says. “Requiring [employees] to remove their face masks is contrary to those guidelines and probably a violation of Occupational Safety and Health Administration workplace safety rules.”

A person wears a face mask and protective gloves
Credit Gabriel C. Pérez / KUT
/
KUT
Employers cannot ask workers to remove face masks.

If you fear for your safety at work, he says, you can file a report with OSHA. But, he cautions, protections against retaliation for OSHA complaints are not as strong as they could be.

“If you think that you've been retaliated against for reporting a health and safety concern to OSHA, you only have 30 days from the date of the retaliation to make a whistleblower complaint to OSHA about it,” Simon says.

And those complaints often dead-end in an administrative process, he says.

Henry says "workers and employers can call Austin 3-1-1 to ask questions about working conditions in relation to COVID-19 safety measures.”

If moral and practical reasons are not enough to convince an employer to protect their workforce, the prospect of personal injury and negligence lawsuits may motivate them.

Lawyers around the country are expecting a flood of suits to be filed in the wake of the crisis. Walmart is already facing a wrongful death lawsuit from the family of an employee who, the suit claims, was not adequately protected from the virus at work and died.

My work is not letting me work from home even though I could be working from home. Is that allowed?

The answer to this question goes back to the question of what is “feasible” for businesses. But Simon says the city's order is pretty clear.

“I think if you're an employee of an essential employer, but you could be working from home, the way that I read this order, you should be working from home,” he says. “That should be something that your employer allows you to do.”

Does my boss have to tell me if someone I work with is infected?

Simon says the answer to this question is complicated by the requirements of the Health Insurance Portability and Accountability Act, which prohibits employers from disclosing medical information about workers.

But, he says, that should not stop employers from notifying staff if someone in the workplace may have put them at risk – without naming names.

“There's the potential that if an employer fails to disclose that information or withholds that information,” he says, “that could be a violation of the OSHA rules.”

Simon says employers also risk being sued by their workers and need to pay workers compensation if an employee contracts the coronavirus as work.

Can I be fired if I report my workplace to the city?

The answer to this question is found in state and federal whistleblower protection laws – and it's not clear-cut.

Federal whistleblower protections exist for people who complain to OSHA. But, as Simon noted earlier, the deadline for filing for protections is limited and the chance of “actually getting a judge to hear that case is very small, because the process goes through an administrative process and sort of ends there.”

There are also state whistleblower laws in Texas, but they tend to be narrow in whom they cover.

One applies only to someone who works within the public sector and makes a complaint to a law enforcement agency “or somebody with the power to enforce the law," Simon says.

Another state law protects people from being fired if they believe their employer is asking them to do something that could subject them to criminal penalties, he says.

“So if you believe that your employer is not an essential business and your employer is asking you to show up at work, and you say, ‘No, I'm not going to do that,’ and the employer says, ‘Well, you're fired.’ You probably have a cause of action,” Simon says.

Likewise, if you believe you are sick, it would be against the law for you to come to work under the emergency orders.

What are the new federal paid leave rights?

Among other things, the federal Families First Coronavirus Response Act provides up to two weeks of paid sick leave – with limits to how much can be paid – for certain workers.

The act requires employers to provide some paid leave – but not just if an employee is sick. For example, those who cannot work because their child’s school is closed are entitled to “up to” $200 a day in family and medical leave under the bill for up to 10 weeks.

You can find details of employee rights under the new law here.

But it’s important to note that the act doesn’t apply to every worker.

The expanded leave part of the act applies to “employees of private sector employers with fewer than 500 employees and certain public sector employers.”

A note on the search for clarity

Many workers’ rights and protections may not become clear unless cases are brought to court. The problem with that is the law moves slowly.

“We don't generally get any rulings out of courts until the case has been on file for a year to 18 months,” Simon says. “So I don't think you're going to see a lot of court rulings providing guidance on any of this stuff anytime soon.”

And by that time, he says, hopefully, the worst of the COVID-19 crisis will be behind us.

Finally, Simon cautions employers that even if their treatment of staff is legal, it may leave a lasting impact on workplace morale if employees don’t feel safe.

“If you're working for somebody who you think is putting you in danger – yeah, I think that's certainly going to leave a bad taste in your mouth even when this is over,” he says.

Got a tip? Email Mose Buchele at mbuchele@kut.org. Follow him on Twitter @mosebuchele

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