If you're returning to work in the midst of the coronavirus pandemic and have questions about your rights, you're not alone. Millions of Americans are wondering whether they're entitled to wear PPE, whether they can stay home from work if they feel unsafe, and whether their employer is allowed to take their temperature or inquire about their medical condition.
Fortunately, a number of federal agencies, including the Equal Employment Opportunity Commission (EEOC), the Occupational Health and Safety Administration (OSHA) and the Centers for Disease Control and Prevention (CDC), have issued guidance on employers' rights and obligations to their employees during the coronavirus outbreak. Here's a look at what those agencies have had to say about PPE and employee safety in the age of COVID-19.
Your employer must provide you with the personal protective equipment (PPE) necessary to keep you safe while doing your job. The types of PPE to which you're entitled depends upon the nature of the work you do.
For high risk workers such as health care professionals, mortuary staff, and others whose jobs involve working within six feet of people with confirmed or suspected cases of COVID-19, you're generally entitled to gloves, eye and face protection, and N95 respiratory facemasks or equivalent protection, along with any other PPE necessary to keep you safe.
For the vast majority of workers whose jobs are lower risk, your need for PPE is likely to be lower. Your employer should review your job duties to determine what kind of PPE best protects you from contracting the disease. If your job involves face-to-face interaction with coworkers or the general public, you'll likely be entitled to a face covering or face mask (not necessarily N95 standard). If your job duties include handling items that others have touched—for example, if you're a checkout worker in a supermarket—you should receive and be required to wear gloves.
In addition to providing PPE, employers should implement basic infection prevention measures, from promoting handwashing and "respiratory etiquette" (covering coughs and sneezes) to implementing disinfecting procedures to allowing flexible work whenever possible. OSHA, the federal agency that enforces workplace health and safety standards, advises employers to develop procedures for promptly identifying and isolating sick people.
Read more guidance from OSHA on PPE in the workplace.
Under the federal Occupational Safety and Health (OSH) Act, employers must provide a workplace free from recognized hazards that are likely to cause death or serious harm to workers.
If your employer isn’t maintaining a safe work environment, you (along with your coworkers, if possible) should first raise your concerns with your supervisor or human resources department. If your boss fails to act, you can file a complaint with OSHA or your similar state agency. Note that the law prohibits employers from retaliating against an employee who files a report or cooperates with an OSHA investigation.
Both OSHA and the CDC have issued guidelines on PPE, social distancing, cleaning and disinfection, and other measures employers can take to minimize the spread of the disease. These resources can help you decide whether your employer is doing enough to keep your workplace safe.
In certain situations, you can walk off the job (or refuse to come to work) if your worksite is unsafe. Under the law, all of the following conditions must be met:
For example, if your work duties involve close, face-to-face interactions with the general public in an area of high community spread and your employer won't provide PPE, you might be justified in refusing to work.
No. Your employer can't retaliate against you in any way for complaining about workplace safety, requesting necessary PPE, filing an OSHA complaint, or cooperating with an OSHA investigation. An employer who commits unlawful retaliation risks steep fines from government agencies and lawsuits from employees.
Your employer would be committing unlawful retaliation and be liable for fines from federal agencies and possible allowed to fire you, discipline you, or take any other negative action toward you if you legally exercise this right.
Probably not. Under workers' compensation laws, you generally can't sue your employer in court for workplace injuries and occupational illnesses. Instead, your remedy is to apply for workers' compensation benefits. While workers' comp typically provides more modest benefits than you might receive in a personal injury lawsuit, you don't need to prove your employer was at fault to receive them.
However, some states permit you to sue outside of the workers’ comp system when your workplace injury or illnesses was caused by your employer's intentional wrongdoing, rather than mere negligence. Whether the failure to provide necessary PPE is "intentional wrongdoing" remains to be seen, and much of it will depend on state law and how judges interpret that law.
Yes, as long as your employer keeps your temperature reading confidential. Employers should also bear in mind that many carriers of COVID-19 don’t suffer from fever (or any other symptoms). For this reason, they should maintain strict health and safety procedures in the workplace to minimize the spread of the disease. OSHA recommends that all employers implement certain basic infection prevention measures, from promoting handwashing and "respiratory etiquette" (covering coughs and sneezes) to implementing disinfecting procedures to allowing flexible work whenever possible. OSHA also advises employers to develop procedures for promptly identifying and isolating sick people.
No, although your employer is allowed to say that an individual in the workplace has symptoms of the virus or tested positive. The ADA prohibits your employer from revealing your personal medical information, including COVID-19 status, to anyone else in the workplace.
Yes, although the CDC discourages employers from requiring "fitness for duty" notes because of the demands this places on scarce healthcare resources.
No, under a federal law known as the Genetic Information Nondiscrimination Act (GINA). This law prohibits employers from asking their employees workers for medical information about family members. However, the employer can ask whether the worker has been in contact with any person who has been diagnosed with COVID-19 or displayed symptoms.