Everything Employers and Employees Need to Know When an Employee Feels Unsafe Returning to Work Due to COVID
Many employees are concerned about returning to work due to COVID-19. Employers need to be prepared for their employee’s requests. They will want to treat their employees fairly and also minimize their liability. There are many different state and federal laws that govern employers and provide protections to employees. This article will summarize each of these laws, including laws specific to Arizona employers.
Americans with Disabilities Act
The Americans with Disabilities Act, as Amended (“ADA”) requires that employers meet and confer with any employee who has a disability to explore what accommodations they may need. Certain disabilities may put an employee at high risk from suffering serious consequences if they were to get COVID. The employee should give careful thought to what accommodations may provide adequate measures of protection. This could include reduced staffing, wireless temperature taking, installation of Plexiglas barriers, isolation from others, or anything else that might make them safer. The employer has a duty to give careful thought to each employee accommodation request.
In some cases, telecommuting may be a reasonable accommodation. It is becoming much more difficult for an employer to argue that working from home is not a reasonable accommodation given how many employees are now successfully working from home. Of course, every job type is different, and being present at work may be an essential job duty.
An employee should start the process by getting a doctor’s note stating that the doctor recommends the employee needs to work from home or that more comprehensive protective measures need to be put in place due to one or more disabilities. Employers should note that HIPPA protections apply to any medical information that they receive when considering disability accommodations.
If the employer refuses to grant a reasonable accommodation for a disability, the employee may be able to quit and claim they were constructively discharged. This is another reason why each request needs to be individually evaluated. A constructive discharge is a legal term in which a resignation can be treated as a termination when the working conditions become so intolerable that a reasonable employee would feel compelled to resign.
If a doctor states that the employee’s life is in serious danger by returning to work and there is a reasonable accommodation that can be given to mitigate and/or avoid the risk, the employee may be able to quit and prove they were constructively discharged. This is important because generally when an employee resigns, they cannot sue for wrongful termination or recover any damages. If the employee was forced to resign due to intolerable conditions, they can sue for wrongful termination and damages.
An employee may also have a claim for unlawful retaliation under federal and Arizona OSHA laws if they are retaliated against because they raised concerns about their own safety or the safety of other employees.
There is a short 30 day statute of limitations to file an OSHA complaint upon any act of retaliation. An employee may recover lost wages and seek reinstatement.
An employee may also qualify for 12 weeks of unpaid leave under the FMLA leave if they meet the criteria.
Families First Corona Virus Relief Act (“FFCRA”)
An employee may qualify for paid leave under the FFCRA.
National Labor Relations Act (“NLRA”)
The NLRA may also give the employee certain rights. It states that nearly all employees in the private sector are permitted to complain about their wages, hours, or working conditions. However, such complaints are only protected if made on behalf of two or more employees.
Others don't have to sign or specifically join in the complaint. Nor do they have to be named or identified by job title. Instead, the employee may simply state that they are raising this concern on their behalf, even if they have never spoken with another employee about their concerns.
If retaliated against for making such complaints, the employee could submit a claim to the National Labor Relations Board. They must do so within 180 days from any act of retaliation.
Labor Management Relations Act (“LMRA”)
The LMRA (29 U.S.C. § 143) states that an employee can assert a claim for wrongful termination if they are forced to quit because they believe in good faith the working conditions are “abnormally dangerous.” There is no definition of abnormally dangerous. The employee is not required to have complained about the safety of others – just themselves.
Wrongful Termination - A.R.S. § 23-1501
In Arizona, employees may also have protections under A.R.S. §23-1501. This law states that it is unlawful for an Arizona employer to terminate an employee because they reported violations of an Arizona statute or regulation. An employee who complains to management that the employer’s patients, clients, or customers lives are potentially in danger because of the employer's failure to take appropriate actions may have protections as a whistleblower if they are fired for making such complaints. Unlike OSHA laws, this statute applies when the employee raises concerns about the safety of non-employees, namely patients, clients, or customers.
If the employer refuses to take action, the employee could send a constructive discharge notice identifying their concerns in writing. Under Arizona’s constructive discharge statute, the employee must give the employer 15 days to address their concerns. The constructive discharge notice needs to comply with all of the statutory requirements, so it is recommended to have an employment lawyer draft the notice. The notice is important because it allows the employee to resign and claim constructive discharge if the employer’s response fails to address their concerns. There is a 1-year statute of limitations to bring a claim in court for wrongful termination or constructive discharge under this statute.
Arizona’s Paid Sick Time Law
An employee may also have a right to take some paid leave under Arizona's paid sick time law. This law is broadly written and allows an employee to take leave, even when they are perfectly healthy, for preventative or diagnostic care. They can also take leave for any physical or mental condition. This means an employee can take time off if they are experiencing anxiety or depression, regardless of how serious their symptoms may be. This is in contrast to the FMLA, which requires that the employee have a “serious” medical condition.
If the employee is retaliated against for having taken or requested paid leave, the employer faces serious consequences.
Each of these statutes has their own deadlines, nuances, and remedies. In some cases, the employee must sue in court. In other cases, an administrative action must be filed. The laws are complex, and both employers and employees should seek qualified legal counsel.
About the Author: Jeff Silence is an employment law attorney at Jaburg Wilk. He counsels employers on compliance with all employment laws including the new and complex federal laws related to COVID-19. He also represents employees who feel their rights have been violated.