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.