Employee Rights: COVID-19 and Returning to Work

COVID-19 and Returning to Work

In the wake of the Covid-19 virus, employees have wondered what to expect when going back to work. With fear of economic disaster, states have been putting focus on the reopening of workplaces nationwide. Many employees, particularly those who are immunocompromised or have respiratory ailments, fear the risk to their health is high.

While employers want to focus on reopening their businesses, employers and employees may still be confused about the restrictions, guidelines and executive orders that the state and federal leaders have laid out for the reopening of the economy. So, what are the legal implications regarding employment law and going back to work? The following will lay out some answers to possible questions employees may have.

Workplace Safety

One important aspect of returning to work is workplace safety. While you may be a healthy individual and your boss needing you to return to work, you may still have concerns about your safety. One main question is: Do you have to go back to the workplace? The answer depends on whether you have a legal reason for not going back to return. Unfortunately, fear is not a reason to not go back. However, if you have been diagnosed with a mental-health disability like severe anxiety, and the fear of the pandemic has intensified your mental disability, you may ask for reasonable accommodations under the ADA (Americans with Disabilities Act) like working from home. But your employer is not bound to allow this accommodation without documentation, such as a physician’s note and a formal request for an accommodation that is then granted. And if your position requires your physical presence, your employer may deny this request because it not reasonable or because the employer has a small number of employees and is not bound by the ADA. 

Underlying Health Conditions

Guidelines from the White House call for a three-phase reopening to return to work. There are special accommodations for vulnerable individuals until the third phase where the policy then is intended a return to “unrestricted staffing of worksites.” Vulnerable individuals consist of the elderly and those with “serious underlying health conditions”. These include high blood pressure, lung disease, obesity, diabetes, etc. However, keep in mind that these are not orders and there is “no enforcement power.” Thus, if you have an underlying health condition, your employer can still call you back to work. If you want to be better protected based on your disability, you may want to follow the process of filing for an accommodation request under the ADA

Privacy Implications of COVID-19

Other important implications on returning to work is privacy. An employer may ask to take your temperature when returning to work. Under normal circumstances, your employer could not ask this because it would be considered a medical exam. However, the EEOC (Equal Employment Opportunity Commission) has determined that with the risks of COVID-19, temperature screening is allowed.

 If you have coronavirus symptoms like fever, dried cough, or tiredness, you must report them to your employer. Your employer should ask if your symptomatic and they have the right to require you to report them under pandemic conditions. If you are an employer, you should create a questionnaire regarding health where employees can fill out and report any of these symptoms. As an employee, these questionnaires are protected and confidential under the ADA.

If you have questions about your rights related to workplace safety during COVID-19 and would like to schedule a consultation with an employment attorney, call us at 602-999-2908.