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The Coronavirus and Your Rights as an Employee

A professional corporate woman employee with her hand on her forehead feeling stress during a business meeting in the office conference room.
By Richard Dahl on February 14, 2020 11:30 AM

As you read about the spread of Covid-19 (a.k.a. "the coronavirus"), you understandably might want to turn into a hermit.

When it comes to your own time, that may not be hard to do. You could stock up on groceries, catch up on your reading, and binge-watch "Better Call Saul."

When it comes to your work time, though, your employer might have other ideas. You may have a job where there's no work-from-home option. And even if there is, your employer might have good reason to need you there in the workplace.

If so, keep in mind that you have a right to reasonable expectations that your employer or manager is doing everything they can to safeguard you and your colleagues.

Covid-19, OSHA, and the Workplace

The Occupational Health and Safety Act's General Duty Clause requires employers to maintain a safe workplace for all workers. It also requires employers to identify any hazards that workers might face. In the case of Covid-19, that means they need to assess whether workers may encounter someone who is infected with the virus. It also means that employers and supervisors should keep watch for any possible signs of its presence in the workplace.

OSHA is providing guidance to employers on what to do if they suspect that an employee is infected. These steps include:

  • Immediately isolating individuals who are suspected of having the virus
  • Taking steps to limit the person's respiratory secretions, including by having them wear a protective mask
  • Restricting the number of people entering the isolated area

What Your Employer Can and Can't Do

It's usually wise to support employer efforts to balance safety with productivity at a time when a pandemic may develop. But it's also wise to keep in mind that you have rights as an employee no matter what.

These rights are generally spelled out in the Americans With Disabilities Act (ADA). As it turns out, the Equal Employment Opportunity Commission (EEOC) had the foresight a few years back to issue a lengthy advisory on how a pandemic might impact ADA workplace protections. Here are a few key points:

  • When the possibility of pandemic exists, employers may wish to identify if there are workers who may be more susceptible to a virus — for instance, anyone with evidence of a compromised immune system. Ordinarily, employers may not make inquiries about disabilities or require medical examinations unless a medical condition poses a "direct threat" to the employee or others. The virus must rise to the level of a pandemic — and a direct threat — before employers could do that.
  • When a pandemic possibility exists, an employer has the right to require a post-offer physical examination of entering employees. However, the employer cannot rescind the offer if the examination reveals a medical condition that puts them at increased risk if there is a pandemic.
  • If there is a pandemic, employers have the right to send employees home.
  • During a pandemic, an employer has the right to ask employees if they have any virus symptoms, but that information must be kept confidential. Employers would also have the right to take employees' temperatures.
  • During a pandemic, an employer has the right to require workers to wear protective gear such as face masks and gloves.
  • If an employee returns from travel, an employer doesn't have to wait for that employee to exhibit symptoms before asking about any potential exposures on the trip — whether the trip was business-related or personal.

Other Workplace Legal Considerations

Workplace lawyers, meanwhile, have been debating potential gray areas that might emerge if Covid-19 becomes a pandemic.

For instance, what happens if an employee contracts the illness from exposure to a co-worker? Can the company be held liable for that? In an article for HR Daily Advisor, attorney Jo Ellen Whitney answered that it's an open question. “I think it is unlikely," she said, "but pandemic issues have not been well-litigated."

Let's hope that it doesn't get that far for anyone.

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