Workers who feel unsafe to return to their jobs during the COVID-19 pandemic appear to have few protections under the law.
“If you are not quarantining yourself, if you are not actively sick,” said employment attorney Colleen T. Calandra, “then you’re at-will. What I worry about is that people are going to be susceptible to at-will terminations, which means their employer will say, ‘I’m sorry you don’t feel comfortable coming back. You’re going to be fired.'”
The Families First Coronavirus Act, which passed Congress in mid-March, provided two weeks of paid sick leave for employees under quarantine or seeking a medical diagnosis for COVID-19. The law also provided for leave to care for another person in quarantine or take care of a child. These new rules apply to companies with 500 employees or fewer, although businesses of under 50 employees may be exempted.
Bryan E. Kuhn, a Denver attorney, advises workers to first approach their employer with specific concerns about the safety of the workplace.
“If you’re just generally fearful,” he said, “and you’re not specifically requesting the employer do anything, you’re not going to be in a very good position as an employee.” Those requests could include personal protective equipment or the ability to work from home. However, occupational safety laws came into effect after the Spanish Flu pandemic of the early 20th century, and there is little case law about what is permissible in the current scenario.
Some state lawmakers acknowledge the need for further legislation on the issue, as well as the bind that workers may find themselves in.
“I believe that no one should be forced to go to work right now if their workplace is not following best practices and guidelines, or if they feel unsafe,” said Rep. Dylan Roberts, D-Avon. He called for guidance from Congress, but said that “we are exploring options for how we can secure additional protections at the state level for employers and workers during this pandemic.”
As Colorado has retreated from its stay-at-home order and businesses have begun to reopen with directives on capacity and cleanliness, dental hygienists have been one occupation heavily impacted by the dilemma of showing up or staying safe. The job, which entails close contact with patients for extended periods, carries elevated risk.
“We have had some reports of some hygienists being let go because they spoke up against going to work, saying that they weren’t as comfortable or they weren’t seeing the implementation of personal protective equipment that’s listed in the guidelines,” said Lisa Westhoff, the president-elect of the Colorado Dental Hygienists' Association.
Westhoff said that between 3,000 and 5,000 hygienists are employed in Colorado, and she has heard from those whose workplaces did implement satisfactory precautions against infection. However, like other employers, access to personal protective equipment is limited and expensive, and it is not clear whether dentists can bill a patient’s insurance for COVID-19-related supplies.
“Our position really is that there are safe ways to open offices and see patients,” she said.
One hygienist who asked for anonymity because they decided to quit recently explained that in their case, the conversations with their dentist prior to the office reopening made it clear that the workplace would not be safe to return to.
“It was a tough decision to make to stand up for yourself and say that you weren’t comfortable — and that the guidelines said one thing and I wanted to follow those guidelines to protect myself and my patients and my fellow employees,” the hygienist said.
In their case, the employee felt that they were having to fight to get access to the recommended protective equipment. The difficulty communicating clearly with coworkers about everyone’s comfort level was an additional hurdle in the negotiations.
“I’m really fortunate to live in a place that we have a low percentage of infections, but for me, I want to keep that low percentage there,” the hygienist explained. “I don’t want to be responsible in any way for a spike.”
The Occupational Safety and Health Act of 1970 requires employers to make their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm."
“If [employees] do believe that there’s any OSHA violation, the sooner they report that the better,” said Jesse K. Fishman, an employment attorney. “And if they believe they are terminated in retaliation for reporting something, they have to file that OSHA retaliation claim within 30 days of the retaliatory act.”
She recommended that people who get to that stage contact a lawyer. The Polis Administration similarly advises that employees report noncompliant businesses to their local health agency and the attorney general's office. By executive order, Colorado prohibits employers from compelling workers older than 65 or with underlying health conditions to return to a workplace in person.
Employers who are following public health guidance, however, can use that to defend themselves, Kuhn said. “A lot of people have used the defense that a person was following traffic laws. Therefore, they’re not negligent” for an accident, he explained. However, “pure legal compliance does not exonerate you from negligence.”
COVID-19 raises unanticipated questions for worker accommodations: for someone who has had the disease, is it a disability? Should someone with a disability under the Americans with Disabilities Act use that as a reason to request accommodation to avoid coming in to work? What happens if an employer denies an employee the right to return after they have recovered from COVID-19, citing worries about transmissibility?
If someone does believe they were harassed, intimidated or subject to unsafe working conditions, they can file for unemployment benefits. A spokesperson for the Colorado Department of Labor and Employment confirmed that if an employee’s workplace “clearly violates the governor's Safer at Home order, then likely they would be awarded benefits.”
Still, if an employer terminated an employee for failure to show up and the worker decided to take the matter to court, there is only a possibility that their case could succeed.
“A lot of jobs have gotten a lot riskier,” Kuhn pointed out. “I don’t know if juries are going to be sympathetic or not. Because everyone’s job’s gotten a lot risker.”