In light of the ongoing COVID-19 pandemic, organizations are taking precautions to ensure the health and safety of their workforce. Equally, employees are prioritizing safety, and they likely won’t hesitate to address employment issues that they feel may be a risk. As employees bring forward individual concerns, employers should review guidance as they respond to each unique situation. While in some cases employees may be protected under federal or local laws and guidelines, employers should be aware of what rights they also have.
While each business is unique, there are common concerns that most organizations are facing. These are the top 9.
1. Balancing Work & Caregiving Responsibilities
School and day care closings, reduced hours and remote learning models are putting both employers and employee-caregivers in a difficult situation. Generally, employers aren’t required to accommodate requests regarding caregiving; however, an employee may request an unpaid leave of absence. If an employee refuses to return to work, employers generally won’t be required to hold their job. According to the EEOC, employers may choose to provide flexibility if not treating employees differently on the basis of sex or other EEO-protected characteristics.
2. Requiring In-Person vs Remote
Generally, if employees are offered work and are being asked to come back into the workplace, they are required to return as there are little protections at the federal level. However, under the Americans with Disabilities Act (ADA), some employees may be entitled to continue teleworking as a reasonable accommodation. Additionally, under the Families First Coronavirus Response Act (FFCRA), some employees may qualify for paid family medical leave or paid sick leave under certain conditions related directly to COVID-19.
3. Personal Travel & Travel Notification
If consistent with business necessity, employers may ask if an employee has visited certain high-risk locations during the coronavirus pandemic. However, employers are unable to ask for details about their time off. When health officials have recommended that people who visit certain locations remain at home for several days once they return, an employer may ask whether an employee is returning from those places, even if the travel was personal.
If an employee has traveled internationally, the U.S. Department of Homeland Security (DHS) may ask an employee where they went and could ask that employee to self-quarantine. As some states have specific laws related to an employee’s personal travel, employers should consult their local government’s laws and guidelines.
4. Masks & Face Coverings
According to the EEOC, an employer may require employees to wear masks. As a form of personal protective equipment (PPE), masks and other PPE can be required if management considers it necessary. However, an employee may be eligible for reasonable accommodation under the ADA or a religious accommodation under Title VII. If a request is presented, an organization can review the request and discuss an accommodation if not an undue hardship under the ADA.
5. COVID-19 Workers’ Compensation
Workers’ compensation may be filed if the employee contracts COVID-19 at the workplace. Infectious diseases such as the flu have generally not resulted in entitlements to workers’ compensation, but this can vary. According to the DOL, it can often be challenging to prove that an employee contracted a virus or disease, such as COVID-19, at a work location. However, some states have orders or bills addressing eligibility for workers’ compensation. Employers should monitor ongoing guidance and consult with local legal counsel.
6. Employee Lawsuits
If an employee believes they have contracted COVID-19 at their workplace, they may choose to file a lawsuit. As mentioned above, this may be challenging to prove; however, an employee may also make a claim for negligent behavior or safety hazards that put them at risk of contracting COVID-19.
7. Entitlement to Hazard Pay
The FLSA does not require hazard pay for those working during the coronavirus pandemic. Hazard pay is typically a private transaction and not required under the FLSA. However, some state or local laws may vary, so employers should consult with local legal counsel.
8. Following CDC Guidelines & Safety Practices
If an employee claims your workplace is not following CDC guidelines for a COVID-19-safe workplace, they are entitled to file a complaint with OSHA. As employers address an employee’s concerns, the proper response will vary based on local orders and unique circumstances within an organization. Again, some state or local laws may vary, so employers should consult with local legal counsel.
According to the DOL, whistleblower laws protect employees and are enforced OSHA. Retaliatory actions are illegal, and employees have the right to file a complaint with OSHA. Also, workers may request a reasonable accommodation, and they have some protections if they refuse to work in a situation where workplace conditions could put their safety in danger.
9. COVID-19 Vaccine
Employers generally can require vaccinations during pandemic situations. However, an employee may be entitled to an exemption should the vaccine interfere with a medical condition or be in violation of an individual’s religious beliefs.
Many of these common concerns won’t have a one-size-fits-all solution, especially since guidance continues to change rapidly. While having employees return to the workplace may feel overwhelming, consider using this checklist to help ensure that your business and employees are prepared for a safe and successful return to work.
You don’t need to go it alone, our experts are here to help. Our insurance professionals can help you determine appropriate actions to address employee concerns and help review your employee practices to ensure a smooth return. To learn more, contact your local risk and insurance professional or a member of our team today.
Note that the above considerations vary depending on the locality of a workplace. The information provided in the above article is not legal advice, and employers should consult with legal counsel for guidance for their organization before changing or implementing policies.