COVID in the Workplace: Your Rights As An Employee

This post was written at 9:00 a.m. on July 16, 2020. We believe that it was accurate and up to date as of that time. However, because of the rapid, daily changes in the political, business, and legal climates, we cannot guarantee the post’s currentness.

Can My Employer Require I Get Tested?

Your employer may inform you that you are required to get tested for coronavirus before returning to work or if another employee has contracted the virus. The Equal Employment Opportunity Commission (EEOC) allows your employer this mandate under the Americans with Disabilities Act (ADA). The EEOC stated that an individual compromised with the virus ‘poses a direct threat’ to the health of fellow employees and the workplace, and COVID-19 tests meet that requirement under the ADA.

Your employer must help provide the resources for employees to get tested and must ensure the tests conducted are accurate and reliable. They must understand the possibility of false results as well as employees contracting the virus after this test.

However, the EEOC does not allow employers to require employees to get antibody tests under federal disability law. These tests, different from an active COVID-19 test, reveal if an individual had the virus in the past and has since recovered. The Center for Disease Control and Prevention (CDC) stated that the presence of antibodies does not indicate immunity from the virus and should not be used to “make decisions about returning persons to the workplace”.

Do I Have to Follow Wearing Masks and Other Protocols?

We have seen two ends of the spectrum on employer’s safety protocols; there are employees who object to new safety precautions and those who feel there is a lack of safety measures and feel unsafe in their workplace.

Mandatory face-coverings and masks is a common safety protocol that employers have chosen to require of their employees. In short, employers’ right to require masks and other safety measures in the workplace is protected and, if broken, could justify an employee’s termination. There are exceptions to this such as medical or religious reasons an employee may not be able to wear a mask.

An employee must notify their employer of their condition that prevents the use of a mask, and they must determine if there is a reasonable accommodation under the ADA.

The Occupational Safety and Health Act (OSHA) issued non-binding guidelines for employers that detail additional safety precautions they should instill based on the level of risk their employees are exposed to. If you feel that your workplace or co-workers are not properly upholding care for everyone’s safety, speak to your employer about your concerns.

If your employer fails to address your concerns of safety, contact a employment law attorney at Smith, Welch, Webb and White to ensure that your rights are protected.

Is My Employer Required to Tell Me There Is a Positive Case in the Workplace?

Unfortunately, the OSHA is not enforcing CDC guidelines as law, and there is currently no legal obligation for an employer to disclose a positive case to their employees.

However, an employee can sue their company for negligence and reckless endangerment if they choose to not notify employees of a positive case and potential exposure to COVID in the workplace.

Can My Employer Fire Me for Contracting COVID?

The federal Family and Medical Leave Act (FMLA) protects individuals from being absent from work due to serious health conditions. The ADA also protects those who have underlying health conditions such as asthma, a heart condition, or compromised immune systems that make them vulnerable to the coronavirus.

If you contract the virus, experience symptoms, or are vulnerable to infection in your workplace, your employer cannot discriminate against you in any way for not being present in the office and must accommodate your needs under reasonable circumstances.

Employees are protected from discrimination of exercising their rights in the workplace. An employer may retaliate against COVID-related concerns including forms of threat, discipline, firing, demotion, suspension, or reduction in hours, or any other negative employment action. If your employer retaliates your concerns for your safety or the safety of others in the workplace, contact an experienced employment attorney at Smith, Welch, Webb and White today.