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Do you have to go back to work if it reopens but you still don’t feel safe?

Employment lawyers say businesses need to create a safe environment—you sadly might not have much of a choice.

Do you have to go back to work if it reopens but you still don’t feel safe?
[Photo: Chapman Chow/Unsplash]

Even as coronavirus cases continue to grow in the United States—more than a million people have been infected so far, and more than 63,000 people have died—two dozen states are starting to reopen businesses. If your boss is telling you to come back to work but you don’t feel it’s safe, do you have any options?

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OSHA, the Occupational Health and Safety Administration, requires businesses to make workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to workers, and it recommends that companies follow CDC guidelines to prevent transmission. Depending on how much the virus is spreading in a community, that might mean adding space between workers, staggering work schedules, or allowing remote work. But the guidelines aren’t mandatory, and OSHA isn’t enforcing them outside of healthcare (even in hospitals, where workers have complained of having to use masks made from paper towels and a lack of soap and hand sanitizer, the agency has been slow to act).

Still, companies likely have an obligation to improve workplace safety now. “Employers need to be aware of the evolving guidance from the various government and public health authorities, and implement or adapt policies as warranted,” says Ron Chapman, an attorney at the labor and employment law firm of Ogletree Deakins, who wrote a Return to Work Guide for businesses. And the general duty to keep workplaces safe hasn’t changed.

If you’re a vulnerable worker

If you’re especially vulnerable to COVID-19 because you have a condition such as diabetes, you may be able to ask your company for reasonable accommodations under the Americans With Disabilities Act, provided you have documentation from your doctor saying that you should isolate because of your condition, some experts say. It may also be possible to get paid leave under the Families First Coronavirus Response Act, which requires private employers with fewer than 500 employees to give emergency leave to workers who have to self-quarantine, with an exemption for small businesses that would fail if they comply.

Chapman says that laws about this type of leave also vary by jurisdiction. “Some states, such as New Jersey and New York, have implemented their own laws,” he says. “And it’s not just the states. For example, the District of Columbia and the County of Los Angeles have implemented their own laws. All of these laws are a little different, leaving employers with operations in multiple locations to play whack-a-mole as they attempt to remain in compliance. The bottom line is that employees with health conditions that make them more at risk from COVID-19 should discuss their need to work from home or for a leave of absence with their employer.”

If you’re on unemployment

Someone who has been collecting unemployment may be able to continue collecting unemployment if they’re asked to go back to a workplace that is clearly unsafe. “If somebody offers you ‘suitable’ work and you’re sent back to work, you can’t refuse it or you get kicked off unemployment insurance,” says Michele Evermore, a senior policy analyst at the National Employment Law Project. “But I would start with the argument that suitable work includes working conditions that are substantially similar to those before, and I would say that going back to work in a post-COVID workplace may not be substantially similar, particularly in places where you can’t social distance and follow the CDC guidelines.”

Depending on state laws, someone working in a situation where they can’t maintain social distancing or don’t have appropriate protection may also be able to quit and still get unemployment. “States have ‘good cause’ quit provisions for things like health and safety. . . . So a worker could quit for those reasons and get unemployment insurance,” Evermore says. “But those provisions vary by state. So the application is not going to be even, and some states will probably deny.”

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If you need childcare

Workers may also be able to delay going back to work if they don’t have childcare and can’t work from home. The Families First Coronavirus Response Act also requires some employers to offer partially paid leave to workers with children at home who need care while schools and daycares are still closed. But because the laws vary so much between jurisdictions and case by case, you should make sure you’re getting advice specific to your case.

For most workers, it’s likely to be challenging to get accommodations from employers—even while states were requiring residents to shelter in place, some companies were reluctant to let workers work remotely. (In Michigan, one woman says she was fired when the state’s stay-at-home order went into effect and she tried to get permission to work from home.) Some business groups are lobbying to protect businesses from liability when workers get sick with COVID-19 and then sue. If you have a union, turn to your union for help; some unions are already fighting to postpone reopening dates while the pandemic continues. If you don’t, you and your coworkers joining together could make talking to your boss easier. But even if it’s just you, it’s worthwhile trying to have a conversation with your boss about options, Evermore says. “I would share with the employer the CDC guidelines about best practices, and then share safety concerns,” she says.

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About the author

Adele Peters is a staff writer at Fast Company who focuses on solutions to some of the world's largest problems, from climate change to homelessness. Previously, she worked with GOOD, BioLite, and the Sustainable Products and Solutions program at UC Berkeley, and contributed to the second edition of the bestselling book "Worldchanging: A User's Guide for the 21st Century."

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