We are all facing moments of uncertainty about returning to work during these trying times. Here are some answers to questions many may have at the moment.
Can I refuse to report to work?
Many states, including Ohio, consider employment to be ‘at will’ which means that an employer may fire you at any point, for any reason. There are many exceptions to the employment at will doctrine. The National Labor Relations Act (NLRA) gives workers the ability to file complaints if they are fired for protesting against unsafe working conditions. The Board will examine if the employees in good faith have concerns that their working conditions aren’t safe.
The NLRA only protects group-based actions however, and would not apply to individual workers who refuse to return to work for the sake of their own health.
The Americans with Disabilities Act (ADA) requires employers to provide disabled workers “reasonable accommodations” that permit them do their jobs as long as their request doesn’t pose an “undue hardship” for the business. So if a worker has a serious health condition that puts them at high risk for COVID-19 complications, their employer may have to let them take leave or work remotely, or provide other reasonable accommodation like a staggered work schedule, even if their office has reopened.
Do I lose unemployment benefits if I won’t go back to work?
The federal government has stated that workers can’t collect unemployment benefits if they refuse suitable work. Although there is no specific standard in determining what suitable work is, there are standards created by both the Social Security Act and the Disaster Unemployment Assistance Program.
The Social Security Act states that suitable work can’t be worse than comparable places of work.
The Disaster Unemployment Assistance Program states that work is not suitable if it presents an unusual risk to the health and of employees.
In Ohio, the process for determining whether to deny unemployment benefits for a refusal to return to work looks at whether good cause exists for refusing an offer of suitable work and as part of the process, facts are sought from both the employer and employee. Under the CARES Act, unemployment benefits are available to workers who are unable to work because of a COVID-19 related reason including:
- The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- A member of the individual’s household has been diagnosed with COVID-19;
- The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19;
- A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work; and
- The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
Does my employer have to protect me?
The Occupational Safety and Health Act (OSHA) has created some requirements for employers:
It requires that employers provide their employees with personal protection equipment.
It also requires employers to provide hand-washing facilities to non-mobile workers.
The state of Ohio has also established rules for employers:
Employers must require that all employees wear a face covering unless it is prohibited by regulation, violates industry/business standards, is not advisable for health reasons, or the employee works alone in a designated area.
Employers must also designate 6-foot distances with signs to provide adequate social distance between employees, allow as many employees as possible to work from home by using teleworking and video conferencing, and have sanitizing products readily available. Sanitizing and protection supplies include soap, hand sanitizer, tissues, disposable wipes, and no-touch disposables.
Employers are asked to have their employees clean commonly touched surfaces such as countertops, railings, door handles, and doorknobs.
Employers are also asked to send home any employees with acute respiratory illness symptoms and to separate them from the other employees to ensure everyone’s safety.
If you, as an employee, have filed a complaint to OSHA regarding unsuitable working conditions, and believe your employer has retaliated, you can file a complaint with OSHA.
If an employee feels that their working condition is unsafe in an Ohio business they can report their concern to their local Health Department through an online form. The form allows employees to report anonymously. ODH | Find Local Health Districts
For those in Hamilton County, Ohio, you can report unsafe conditions to: Hamilton County Public Health: File a Complaint
What happens if I get sick?
The Families First Coronavirus Response Act (FFCRA) requires that employers who have less than 500 employees provide short and long term leave to workers who are diagnosed with COVID-19 or can’t work for reasons associated with the virus.
Examples of reasons why employees may not be able to work because of COVID-19 include:
You are subject to a government isolation order; your doctor has instructed you to self-quarantine; you are experiencing COVID-19 symptoms; you are caring for those who have been ordered to quarantine or children whose schools have been canceled.
The FFCRA also makes it illegal for employers to retaliate against employees who have requested paid sick days or leave under the Act.
The FFCRA expanded the Family and Medical Leave Rights and states that employees must be returned to their former position or a similar position when they return from leave.
Employees who have been underpaid or unfairly denied time may sue their employers.
Employees who become sick while working may also be able to collect workers’ compensation from the state, for any injuries or illnesses that result from working. In these cases employees will need to show proof that they were infected with COVID-19 while at work.
The new laws stemming from the COVID-19 crisis and their impact on the rights of employees who are returning to the workplace can be complicated. We are here to help workers understand and protect their rights.