Governor Charlie Baker said on Monday that businesses will start reopening in four phases beginning around May 18 if virus infection rates and hospitalizations allow it. That means that thousands of workers will be returning to offices, shops, restaurants, factories, and other workplaces after months of workplaces being closed due to the pandemic. What can workers expect?
Q. My employer wants me to return to work, but I’m worried about being exposed to the virus in the workplace. What are my rights as an employee?
A. You are entitled to a safe workplace. And it’s your employer’s legal obligation to provide it, even (or especially) in a pandemic.
Q. What’s meant by a “safe workplace”?
A. The workplace must be “free of known health and safety hazards,” according to the Occupational Health and Safety Administration, which enforces federal law on workplace safety. There’s no question the novel coronavirus qualifies as a “known health and safety hazard.”
Q. So my employer must take steps to ensure that the risk of contracting the virus is minimized?
A. Yes. Depending on your job, that could mean physical barriers such as clear plastic sneeze guards; changes in the way business is conducted, such as use of drive-up service windows; improved ventilation and added filters; and additional hand sanitizers.
OSHA has classified workers into three risk categories: heath care workers, who have remained on the job for the most part, are at high risk of exposure to the virus. Teachers, restaurant and retail workers, and mass transit workers are deemed to be at medium risk, and office workers are considered at low risk.
Q, Does Governor Baker’s plan outline guidelines for businesses as they reopen?
A. Yes, the proposal at this point covers social distancing, hygiene, staffing, and cleaning.
All persons, including employees, customers, and vendors, should remain at least 6 feet apart to the greatest extent possible, both inside and outside workplaces. Companies need to establish protocols for social distancing, including signage, and require masks or face coverings for all employees.
Workplaces should provide supplies to allow for frequent hand washing and regularly sanitize high-touch areas such as workstations and doorknobs.
Employers must train employees on the importance of social distancing and hygiene and require those with COVID-19 symptoms to remain at home. A plan must be in place for the return to work of those who have recovered from the virus.
Q. My employer says that if I don’t return to work immediately, before May 18, they will cut off my unemployment benefits? Can they do that?
A. No. Your eligibility for unemployment benefits is determined by the state Department of Unemployment Assistance, not your employer. Employees with a reasonable justification for refusing to return to work remain eligible for benefits. (The state says determining what is “reasonable” is a fact-specific inquiry.) Employees who refuse to return to work because they prefer collecting benefits or because their weekly benefit is higher than their wages will lose their eligibility.
Q. I am an office worker but my company is near the top of a high-rise building. What about the risk of riding in elevators, or simply pushing the buttons?
A. It’s difficult to maintain a distance of 6 feet in an elevator with others. Limiting capacity is one possibility for employers and building managers, even if it means creating a queue of people waiting (6 feet apart) in the lobby. Elevator buttons, like doors, doorknobs, faucets, and water fountains, must be cleaned frequently.
Q. The only way I can get to work is on public transportation and that doesn’t feel particularly safe to me right now. Can that be grounds for continuing to work at home?
A. Hard to say. Generally, the workplace is your employer’s responsibility; how you get there is yours. That being said, if you have worked from home without problems during the pandemic that could be an argument for continuing to do so, at least until we get a better idea of what public transportation will look like.
Q. What if I’m sick with the virus or in quarantine and can’t go to work? Can I be fired or lose wages?
A. No. Employers are required to pay you for up to two weeks at your regular rate if you are quarantined under government order or on the advice of a health care provider, or if you are experiencing symptoms and seeking a medical diagnosis.
Q. What if I can’t work because I have to care for someone? Can I be fired or lose wages?
A. Employers are required to pay you for up to two weeks at two-thirds of your regular rate if you have to care for someone in quarantine.
Q. My children will remain out of school until at least September, and I am worried about camp or other child care options for the summer. Can I be fired or lose wages for staying home to care for my children?
A. Under the Families First Coronavirus Response Act passed in March, employers are required to pay you for up to 12 weeks at two-thirds of your regular rate if you have to care for a child whose school or child care provider is closed due to the virus. If you are now close to exhausting that leave, you face a difficult choice. Currently, there is no further legally mandated leave available to you. And as a result, you face possible termination if you can’t return to work. Senate President Karen Spilka is calling for a state-sponsored plan to assist parents, saying child care, including summer camps, is key to reopening the state economy.
Q. Are there exceptions to the requirement that employers provide leave?
A. Small businesses with fewer than 50 employees may qualify for an exemption if the leave provisions would threaten the viability of their businesses. Also, the Families First Act that mandates extra protections for employees does not apply to employers with more than 500 employees. In addition, an employer of “a health care provider or an emergency responder" may be excluded its employees.
Q. Do I get special consideration because I am pregnant or have health issues that place me at higher risk if I am exposed to the virus?
A. You may. Ask your employer for special accommodations, like working from home, under the Americans with Disabilities Act or ask for leave under the Families First Act.
Q. What does the Centers for Disease Control and Prevention say about reopening workplaces?
A. The CDC has its own guidelines for employers: Stop handshaking; facilitate hand washing at the door and send e-mails to employees at regular intervals reminding them to wash their hands; remind employees to avoid touching their faces and to cover coughs and sneezes; disinfect surfaces like doorknobs, tables, desks, and handrails regularly.
Q. Anything else?
A. Use videoconferencing for meetings when possible; when not possible, hold meetings in open, well-ventilated spaces; consider adjusting or postponing large meetings or gatherings; and assess the risks of business travel. Employers should also ensure strict hygiene in cafeterias. Other recommendations include adding space between workers and staggering work schedules. Employees should not share phones, desks, offices, work tools, or equipment, when possible.
Q. What if I still have concerns about safety in my workplace?
A. You have a legal right to contact OSHA, without fear of retaliation. But be aware that last month OSHA announced it would leave it to employers to investigate some complaints, while conducting few inspections.
Q. Will the state spell out in greater detail what is expected of employers?
A. The state is in the process of releasing detailed guidance to employers in anticipation of a phased reopening of the economy, beginning as early as next week. While that planning goes on, an independent coalition of occupational health specialists, the Massachusetts Coalition for Occupational Safety and Health, released its own recommendations, including requiring every business to detail how it will prevent the spread of the virus and setting up a statewide multilingual hot line number for workers to report concerns about workplace conditions.