COVID-19

What Safety Protections Must Employers Provide For Essential Workers?

If you’re wondering about what your employer should provide to protect you at work during the COVID-19 pandemic, here’s the short answer:

Employers, even independent of COVID-19, are required to keep their employees safe. Required safety protections, however, vary depending on your specific employment situation.

First, determine if you are an “essential” worker. Please see our other post on this topic. Next, determine what protection your employer must provide. The answer to that question varies and is based on a number of factors such as the nature of your employer and your job, to name just a few, but with COVID-19, almost all employers need to provide employees with some form of personal protective equipment (“PPE”) and so-called “safe work practices.”

Now, here’s a more detailed answer:

What Additional PPE and Safe Work Practices Are Available to Essential Workers Due to COVID-19?

To help provide a framework of resources you may wish to consider for PPE protections, we outline below a few of the key laws and regulations where PPE protections may be found, and also provide information on some of the more recent COVID-19 specific guidance that has been provided (in some cases, mandated) by governmental and regulatory authorities.

As a starting point, at the federal level, although the Occupational Safety and Health Administration (“OSHA”) admits the OSHA Act of 1970 (“OSHA Act”) does not specifically address COVID-19, it points to pre-existing provisions containing PPE requirements to offer protections to some workers. To help provide further information, OSHA issued a document entitled, “Guidance on Preparing Workplaces for COVID-19” (the “OSHA Guidance”).

In addition to covering certain PPE protections, the OSHA Guidance covers a variety of measures to help protect workers, including infectious disease preparedness and response plans. Currently, a bill has been introduced (H.R. 6139, proposing the “COVID–19 Health Care Worker Protection Act of 2020”) seeking to mandate an emergency temporary OSHA standard to add additional PPE protections for healthcare workers in view of the extreme dangers presented by COVID-19. We are hopeful that more legislation, at both the federal and state level, is introduced to help protect workers in all fields, and not just for health purposes, but for financial reasons as well. A helpful website to track legislation is linked here. We have also issued separate posts about various new legislation here.

Similarly, at the state level, California’s pre-existing Aerosol Transmissible Disease (“ATD”) Standard provides protections useful for dealing with COVID-19. The ATD Standard is designed to prevent worker illness from infectious diseases that can be transmitted by inhaling air that contains viruses, bacteria, or other disease organisms.

To assist you with understanding how the ATD provides COVID-19 protection, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“Cal/OSHA”), published online guidance concerning the ATD Standard and COVID-19 (the “Cal/OSHA Guidance”). As you will see in the Cal/OSHA Guidance, only a limited list of employers are subject to the ATD Standard, such as certain healthcare related entities, laboratories, correctional facilities, homeless shelters, drug treatment programs, and other locations that Cal/OSHA notifies in writing that they must comply with the ATD Standard.

The Cal/OSHA Guidance also outlines requirements employers must follow when an illness such as COVID-19 presents a “significant risk” of exposure in the workplace. These requirements include the implementation of an Injury and Illness Prevention Program designed to prevent or reduce infection hazards, and training employees on COVID-19 infection prevention methods. Other protections, of course, apply to all employers, such as providing washing facilities. Notably, the Cal/OSHA Guidance outlines requirements whereby an employer must assess if hazards from COVID-19 are present in the workplace that necessitate providing PPE. If such a hazard is identified, the employer is to provide properly fitting PPE.

In addition, to the extent an employer is not required to comply with the ATD Standard, Cal/OSHA recommends that the employer follow current guidelines of the Centers for Disease Control and Prevention (the “CDC”) for COVID-19. Although the CDC is not currently requiring masks for all essential workers at all times, it continues to release guidance periodically to address this unfolding pandemic. For example, on April 8, 2020, the CDC issued updated guidelines for essential workers (the “CDC Guidance”). The CDC Guidance is principally designed to keep essential workers on the job.

Per the CDC Guidance, essential workers who have been exposed to COVID-19 may go back to work if they are asymptomatic and adhere to certain requirements, such as taking their temperature before going to work, wearing a face mask at all times for at least 14 days after they were exposed to COVID-19, and practicing social distancing at work as much as possible. (Workers may or may not find that to be an improvement from staying home for a 14-day period after exposure).

Perhaps some of the most striking recent changes have come, for many essential workers (such as those in the grocery and food service industries), at the local government level. Recently, the County of San Diego ordered (“April 9 CSD Order”) that workers in contact with the public in restaurants or other essential business that serve food, such as grocery stores, pharmacies, convenience stores, gas stations, banks, or public transportation, wear a face covering.

On the issues of safe work practices, we have all seen social distancing and sanitation measures addressed at every level: federal, state, and local. Often, it is at the state and local level where the most stringent guidance is provided. For example, in the County of San Diego, “essential” businesses are now required to publish a COVID-19 plan (a “Social Distancing and Sanitation Protocol”) and undertake mandatory sanitation practices. Essential businesses in San Diego County must provide hand sanitizer and other disinfecting products, set schedules for sanitization efforts, ensure measures to distance workers from one another and from the public, and a host of other requirements. Requirements for sanitation and social distancing are also covered in the April 9 CSD Order.

We encourage employees to monitor all current guidance offered by federal, state and local regulatory authorities concerning workplace safety at all times, but especially during COVID-19.

Finally, you should also be aware that OSHA, for example, requires employers, under certain facts, to report cases of COVID-19 in their employees as a workplace injury. Knowing that you are working in an environment with existing COVID-19 cases is a key part of being able to adequately protect yourself.

What Happens If My Employer Tries to Prevent Me From Reporting PPE Violations Or Fires Me Because I Complain About A Lack of PPE?

Depending on your employment situation, various legal remedies exist if your employer prevents you from reporting a lack of PPE or takes any adverse employment action against you because you complain or request protection. For example, several states have so-called “whistleblower” laws to protect employees. In addition, if you face any adverse employment action for demanding PPE or other protections, you may have claims for retaliation, wrongful termination, and other employer misconduct. Reports are surfacing of employees at Amazon and other grocery/delivery businesses, as well as staff at hospitals and medical facilities (doctors, nurses, and other health professionals) facing a host of adverse employment actions for striking (see post), protesting, complaining, or refusing to work without adequate PPE.

What Happens If I Become Ill or Die Because My Employer Failed to Protect Me?

The media is beginning to report on the unfortunate COVID-19 related deaths (or severe physical injuries) of many essential workers. If you pass away due to the illness, a wrongful death claim may exist depending on the circumstances. In the event of serious bodily harm or injury, there are a host of claims that may be available to you. Feel free to contact us if you have questions.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

If Your Employer Says You Are an ‘Essential Worker,’ Do You Have To Go To Work? What about Your Health & Safety?

Since Governor Newsom’s March 19, 2020 shelter-in-place order, most Californians have been staying home to protect themselves and others from COVID-19 and to flatten the curve of its rapid spread. But there are exceptions for “essential workers” who supply or support functions critical to public health and safety, the economy, and national security. So, what if you provide services to an essential business? Do you have to go to work? Generally, yes, you must report to work; however, just because you are “essential” does not mean you essentially give up your right to your health and safety in the workplace.

Have You Properly Been Classified as an “Essential Worker”?

To determine whether your job is essential, consult the State Public Health Care Officer’s extensive list of Essential Critical Infrastructure Workers, briefly defined as follows:

  • Healthcare/Public Health Sector, including health care providers, public health workers, caregivers, hospital, veterinary, and laboratory personnel, workers in other medical facilities like blood banks, hospices, and outpatient clinics, those responsible for health care data transmission and storage, and workers involved in the manufacture and distribution of medical equipment, pharmaceuticals, vaccines, personal protective equipment, sanitization and cleaning supplies, and personal care and hygiene products.
  • Emergency Services Sector, including law enforcement, first responders, fire fighters, 911 call center employees, child and adult protective services employees, private security, animal control, and employees needed to maintain essential public works like bridges, water and sewer mains, and traffic lights, and to maintain safety and sanitation in residences such as plumbers, electricians, and exterminators.
  • Food and Agriculture Sector, including workers in retail food, beverage, cannabis, and dietary supplement stores and markets, food banks, pharmacies, restaurants providing carry-out, employees supporting all aspects of food manufacture, supply, processing, packaging, distribution, and transportation, farm, animal agriculture, and forest product workers, and workers essential for government assistance programs.
  • Energy Sector, including workers involved in the production, refining, storage, and distribution of electricity, oil, and natural gas such as utility workers, technicians, and engineers in these segments, call center employees dealing with outages and leaks, and retail gas station and truck stop employees.
  • Water and Wastewater Sector, including all workers needed to operate and maintain drinking water and wastewater/drainage such as at water authorities, treatment facilities, collection facilities, and with chemical disinfectant suppliers.
  • Transportation and Logistics Sector, including all workers needed to support the subsectors of aviation (airlines, helicopters, airports, and landing strips), highway and motor carrier (roadways, bridges, and tunnels), maritime transportation systems (coastline, ports, and waterways), mass transit and passenger rail (buses, trolleys, subways, taxis, and truck drivers), pipeline systems (carrying gases and chemicals), freight rail (railroads), and postal and shipping (mail, courier, and delivery services).
  • Communications and Information Technology Sector, including all workers supporting cable, telephone, and satellite providers, radio, television, and media services, network operations and information technology, cloud computing services, and cybersecurity.
  • Other Community-Based Government Operations and Essential Functions, including public benefit government employees, some court employees, workers supporting schools for the purposes of distance learning and providing school meals, construction workers, commercial retailers that supply essential sectors (such as pet supply, auto supplies and repair, and hardware and home improvement), workers supporting the entertainment industry, laundromat and laundry services, animal care facilities, and hotel workers at hotels used for COVID-19 mitigation.
  • Critical Manufacturing Sector, including all workers necessary for the manufacture of materials and supplies needed for essential sectors such as medical supplies, metals, machinery, electrical equipment, and transportation equipment.
  • Hazardous Materials Sector, including workers at nuclear facilities, handling medical waste, and providing hazardous waste cleanup.
  • Financial Services Sector including all workers needed to process financial transactions and services such as investments, credit and financing, banking and lending, and insurance services, and to provide consumer access to these financial services.
  • Chemical Sector, including all workers involved in the conversion of raw materials and chemicals into industrial and consumer goods such as hand sanitizers, pharmaceuticals, textiles, paper goods, plastic packaging, cleaning and medical solutions, and including those involved in their supply, production, transportation, and facilities operation and maintenance.
  • Defense Industrial Base Sector, including workers required for national security and who work for companies, and their subcontractors, performing under contracts with the Department of Defense such as aerospace, mechanical, and software engineers, manufacturing and production workers, information technology and security personnel, intelligence support, and aircraft and weapon system mechanics.

This list is subject to change by the California Department of Public Health.

There is much less clarity regarding non-essential workers, presumably encompassing any workers who do not neatly fit within the above list. California’s Coronavirus (COVID-19) Response FAQs webpage states that businesses such as dine-in restaurants, bars and nightclubs, entertainment venues, gyms and fitness studios, public events and gatherings, convention centers, and hair and nail salons are closed while the stay-at-home order is in effect. Clothing retailers and department stores are also non-essential as they do not, unlike stores like Walmart and Target, sell food or other essential supplies such as cleaning and personal hygiene products. Ultimately, it is the California Department of Public Health’s call.

If My Job Falls Within a Critical Sector, Do I Have to Report to Work? What About My Health and Safety?

If your job falls within one of the enumerated categories, you will generally be required to report to work – that is, assuming you have not been impacted by COVID-19 and have not opted to take Paid Sick Leave or Paid Family Leave, as discussed in our March 19, 2020 blog, or any other leave to which you are entitled. Your employer, however, is required under the Division of Occupational Safety and Health (“Cal/OSHA”) regulations to protect you from exposure to COVID-19.

To start, there are numerous disease-prevention protections already required of employers such as providing washing facilities that have an adequate supply of suitable cleansing agents, water, and single-use towels or blowers, having an Injury and Illness Prevention Program (“IIPP”) to protect employees from workplace hazards including infectious diseases, and providing personal protective equipment if an infectious disease is identified as a workplace hazard. Because COVID-19 is so widespread, most workplaces will have to consider it a hazard.

For workers in the Healthcare/Public Health Sector, correctional facilities, homeless shelters, and drug treatment programs, your employer is likely required under Cal/OSHA’s Aerosol Transmissible Diseases (“ATD”) standard to reduce your risk of infection through screening procedures, implementation of an exposure control and/or biosafety plan, taking isolation precautions, and, in some cases, requiring N95 respirators or air-purifying respirators. Consult Cal/OSHA’s Safety & Health Fact Sheet regarding ATDs and The California Workplace Guide to ATDs for more information.

For other sectors not subject to ATD standards, Cal/OSHA has released Interim Guidelines for General Industry with recommended precautions (from the Centers for Disease Control and Prevention [“CDC”]).

Some of these Cal/OSHA guidelines are as follows:

  • Actively encouraging sick employees to stay home and immediately sending home any employees with acute respiratory illness symptoms;
  • Providing information and training to employees on cough and sneeze etiquettehand hygiene, avoiding close contact with sick persons, avoiding touching eyes, nose, and mouth with unwashed hands, and avoiding sharing personal items with co-workers;
  • Providing tissues, no-touch disposal trash cans, and hand sanitizer for use by employees;
  • Performing routine environmental cleaning of shared workplace equipment and furniture; and
  • Advising employees to check CDC’s Traveler’s Health Notices prior to travel.

Cal/OSHA has also released more specific guidance for Agricultural Employees (also in Spanish), Childcare Workers, and Skilled Nursing and Long-Term Care Facilities.

What Can I Do if My Employer is Failing to Take Appropriate Precautions to Protect Me from Exposure to COVID-19?

If you are an essential employee and your employer is not taking proper precautions, if you have been exposed to COVID-19 at work because of your employer’s failures, or if you believe your employer is wrongfully claiming it is an essential business, you may be able to hold them legally accountable for violating your rights.

The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law.

Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.

What If My Employer Is Forcing Me To Work During COVID-19 & I Don’t Feel Safe?

On March 11, 2020, The World Health Organization (“WHO”) declared COVID-19 a “pandemic.” About a month later, as of April 9, 2020, there have been more than 1.5 million confirmed cases of COVID-19, resulting in more than 90,000 deaths. The numbers continue to rise by the minute. As of March 30, 2020, at least 30 states and the District of Columbia have implemented temporary stay home orders due to COVID-19. The stay home orders are not only vital to slow the spread of the virus, but to keep workers safe and healthy.

What if, however, you work in an “essential” business that is exempt from the stay home orders, or your employer is otherwise requiring you to report to the worksite during the pandemic and you don’t feel safe or comfortable? What are your rights?

Essential Workers Excluded from Stay-Home Orders

Essential workers are excluded from State and local stay-home orders, including California’s and San Diego’s stay home orders. These orders exclude workers in essential infrastructure industries as outlined by the federal Cybersecurity and Infrastructure Security Agency (“CISA”). To date, unlike other workers, those in essential businesses, have not been ordered to stay home. The federal Centers for Disease Control and Prevention (“CDC”) has also advised that essential workers may be permitted to continue to work to ensure continuity of operations of essential functions, even following potential exposure to COVID-19.

With that said, the CISA guidance is not binding and is not an executive action mandating essential workers report to work. Likewise, nothing in California’s stay-home order mandates essential workers “must” report to work – it simply excludes them from the stay home order. Thus, despite the societal and practical needs for essential workers to report to work to ensure continuity of operations of essential functions (e.g.,food, healthcare, etc.), if the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of the Occupational Safety and Health Administration (“OSHA”) and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”). No employee, particularly those who did not choose to work in a normally dangerous occupation, should have to choose between their health and safety (up to and including death) or losing their job.

Employers Must Provide a Healthy & Safe Work Environment

Whether there is a pandemic or not, employers are required to provide a safe and healthy workplace in compliance with OSHA regulations. With respect to COVID-19, at a minimum, employers are expected to follow guidance from the CDC and OSHA, as well as State and local government guidelines, regulations, and orders, to maintain a safe workplace. Precautions must be taken to limit exposure to COVID-19, including infection prevention measures and response protocols as outlined by OSHA in its Guidance on Preparing Workplaces for COVID-19.

Extra precautions should be taken for employees who are at-risk for developing more serious complications from COVID-19 (e.g., older adults and people who have severe underlying chronic medical conditions like heart or lung disease, or diabetes). If your employer is not taking reasonable safety precautions, it could be in violation of OSHA and California’s labor laws.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact the attorneys at Haeggquist & Eck, LLP by calling (619) 342-8000 to learn more about your rights.

Can I Be Fired For Refusing To Work Because of COVID-19?

Short Answer: As with many legal questions, “it depends.”

Long Answer: Your individual circumstance will dictate whether you may have a legal right to refuse to work because of COVID-19. There are several circumstances wherein you may have a legal right to refuse to work because of COVID-19. There are other circumstances wherein your refusal to work because of COVID-19 may not be legally protected. This post provides examples of a few common scenarios to help clarify the varying circumstances.

Example 1: You work in a non-essential business and, as such, you are required to stay home because of California’s and/or San Diego’s stay home orders relating to COVID-19. However, you can telework from home. Absent other considerations (explained in examples below), your employer may have a legal right to fire you if you refuse to work (assuming you are an at-will employee and your employer has complied with other standard legal requirements).

Example 2: You work in a non-essential business and, as such, you are required to stay home because of California’s and/or San Diego’s stay home orders relating to COVID-19. However, you can telework from home. But you are responsible for caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19, making it unfeasible for you to telework. Under this circumstance, you would most likely be eligible for job-protected paid leave under the new Families First Coronavirus Response Act. See our blog post here to learn more about your rights under this act. If your employer is requiring you to work despite this circumstance, and fires you for refusing to work, the firing may be unlawful. Similarly, if your employer is requiring you to work under the following circumstances, and fires you for refusing to work, the firing may be unlawful, if you are unable to telework because of these circumstances: (a) you have been advised by a health care professional to self-quarantine related to COVID-19; (b) you are experiencing COVID-19 symptoms and seeking medical diagnosis; (c) you are caring for someone described in (a) or (b); or (d) some other extenuating circumstance makes it infeasible to telework (e.g., power outage).

Example 3: You work in a non-essential business and, as such, you are required to stay home because of California’s and/or San Diego’s stay home orders relating to COVID-19. However, in violation of the stay home orders, your employer is forcing you to report to the worksite during the pandemic. A willful violation of California’s stay home order is a misdemeanor in violation of Government Code §8665. As such, if your employer fires you for refusing to report to the worksite in this scenario, you may have a wrongful termination claim.

Example 4: You work in an “essential” business that is exempt from the stay home orders and, thus, your employer is requiring you to report to the worksite. If you refuse to work because of COVID-19 in this circumstance, whether your employer can legally fire you may depend on the specific nature of your job and how safe and healthy your employer is making the workplace. Whether there is a pandemic or not, employers are required to provide a safe and healthy workplace in compliance with the Occupational Safety and Health Administration (“OSHA”) regulations. With respect to COVID-19, at a minimum, employers are expected to follow guidance from the Centers for Disease Control and Prevention (“CDC”) and OSHA, as well as State and local government guidelines, regulations, and orders, to maintain a safe workplace. Precautions must be taken to limit exposure to COVID-19, including infection prevention measures and response protocols as outlined by OSHA in its Guidance on Preparing Workplaces for COVID-19. Extra precautions must be taken for employees who are “at risk” for developing more serious complications from COVID-19 (e.g., older adults and people who have severe underlying chronic medical conditions like heart or lung disease, or diabetes). The preventative measures and protocols implemented may vary from employer to employer, depending on the nature of the workplace and job. For example, the necessary precautions needed at a worksite with high person-to-person contact (e.g., a grocery store) may be different than that of a small accounting office. But all worksites must be safe and healthy.

Despite the societal and practical needs for essential workers to report to work to ensure continuity of operations of essential functions (e.g., food, healthcare, etc.), if the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of OSHA and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”). If the workplace is not safe in violation of OSHA regulations, it may be unlawful for your employer to fire you for refusing to work.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact attorneys at Haggequist & Eck, LLP to learn more about your rights.

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