With all the rapid changes in shelter in place orders from cities and counties, plus updated CDC guidelines, North Texans have questions about work and work safety. NBC 5 took those questions to a local attorney for guidance.
QUESTION: If I don’t work, I don’t get paid. So what are my options if I do get sick or have to take care of someone who is sick?
Dave Wishnew, attorney for Crawford, Wishnew & Lang: There are lots of factors to consider here, mainly where you work and who do you work for. The first place you’re always going to start is "Do you have an employment agreement or does the employer have a policy in place for paid time off? So, do you have accrued or unused paid time off?"
[If you live in Dallas] you may benefit from Dallas Sick Pay Ordinance that takes effect April 1, which provides 60 hours of paid leave for full-time, and less for part-time, employees.
The new “Families First Coronavirus Response Act” goes into effect April 2 and applies to employers with 500 employees or less, and would provide employees to receive up to 80 hours at full-time pay if they are quarantined or experiencing COVID-19 symptoms and awaiting diagnoses. They’d also be eligible up to 80 hours for paid sick time at 2/3 rate if they’re having to care for a child whose school has been closed or childcare provider has been closed based on an action by a state or local government.
Finally, under the updated FMLA – Family Medical Leave Act -- pay up to 10 weeks for any employee that has worked at least 30 hours, but is unable to come to work because they are having to care for a child whose school has been closed.
And, another area – an employee who becomes sick may look to benefits under workers’ compensation. If an employee believes they contracted the virus at work and the employer has opted into the Workers’ Compensation Act that may be a source of benefits.
QUESTION: So, can a company be held liable if an employee contracts COVID-19 at work?
Wishnew: Maybe -- again look at workers’ compensation. If a Texas employer is a subscriber to corkers’ compensation, the liability to the employer is not as high as to those employers who are not subscribers to Texas Workforce Compensation.
If it’s a non-subscriber, an employer is going to be upheld under a general negligent standard, meaning, "Was there a duty to exercise reasonable care? Was the employer on notice about a threat to health and safety to its employees?" And if it was – which arguably we all are now – than an employer may be held liable for forcing an employee to come to work under those circumstances.
QUESTION: I fall into one of those “high risk [COVID19] categories” and I’m still required to show up to work and I’m worried about my health. What options, if any, do I have?
Wishnew: Under the Occupational Safety & Health Act, OSHA, employers are required to provide a safe working environment and employees can in good faith refuse to go work if they believe they are in imminent danger. Now, OSHA describes imminent danger as a threat of death or serious physical harm, and while it’s currently unknown if COVID-19 falls under “imminent danger,” it’s certainly trending that way and think it would seem obvious to everyone that it would be a threat of imminent danger and an employee would have the ability to refuse to go to work in good faith.
Now, you also have employees who live in city of Dallas, county of Dallas and other areas that have shelter in place orders in effect, so if an employer is forcing an employee to come to work for a non-essential business, that would be a violation of an order and the employee could refuse to work and should refuse to work under those circumstances.
QUESTION: I’m scared to speak up and say something because I’m worried I’ll lose my job and get fired right there on the spot.
Wishnew: Well unfortunately, that’s going to be a problem facing a lot of people right now. And I think you have to put your health first, your safety first and if it’s not an essential business – which these shelter in place orders have very meticulously defined, then an employee needs to make the best decision for the health and the safety of their family.
QUESTION: What if my company is not taking the CDC recommendations seriously? It’s not a clean environment. What rights do I have or is there anything I can do?
Wishnew: The first step is trying to have a conversation with your employer. I think that’s the first step is to communicate with your employer your concerns. But if you’re being compelled to work in an environment that you think is unsafe – say for example the employer is not following CDC guidelines or state and local guidelines, following social distancing or forcing people come to work for a non-essential business and the employer refused to have leniency – then I believe yes – that next step is to reach out to local and state authorities and address the issue with them.
They can consider reporting it to Dallas County or their county if they are being forced to work for a non-essential business or for a business not complying with CDC, state or local guidelines.
QUESTION: I do not work for an “essential service,” yet my employer is still asking me to show up for work. What do I do?
Wishnew: We want to look at where does the employee live and not necessarily where the employer is located. [Dallas] County Judge Clay Jenkins has clarified that if the employee lives in Dallas county, even if his job is in Johnson County or some other county that does not have a shelter in place order, that employee is still required to stay home. So, under order punishable by fines or jail time, they’re required to comply with city and county orders and should stay home.
If the employee believes their employer is a non-essential service and the employer is deeming it an essential service you need to start having a conversation with your employer, but the next step is if you feel unsafe, if you feel your health is threatened, then contacting Dallas County or some type of similar local agency is the next stop.
QUESTION: Can an employer require employees to disclose their travel history – international or domestic?
Wishnew: Yes, an employer can require an employee to disclose their travel history and I think this was even more important a couple of weeks ago when we were under a Level Three advisory, now we’re under a Level Four and the danger level and the situation level has increased.
QUESTION: From an employer’s perspective, do they need to pay an employee who’s not sick, but being quarantined for safety?
Wishnew: It’s going to depend on the size of the employer and the location of the employer, but under the Family First Coronavirus Response Act that goes into effect April 2, an employer is going to have to pay certain paid sick leave or family medical leave to employees.
Up to 80 hours at full-time pay for an employee that is under quarantine or is experiencing symptoms and awaiting a diagnosis. Two-thirds of the employees pay and up to 80 hours for an employee caring for a child whose school has been closed. And, under the updated Family Medical Leave Act requirements up to 10 weeks of paid family leave at two-thirds the rate of the employees pay to care for a child whose school has been closed or whose childcare has been shutdown by a shelter-in-place order.
QUESTION: Is there anything else we should know?
Educate yourself first. Read information that’s made available through state and local governments. There’s a lot of misinformation that’s going around right now and instead of perhaps, receiving your information in a social media comment or tweet, go to the source, the regulators, our elected officials, our state and federal governments that are issuing information for what your rights and responsibilities and potential remedies are.
Safety first. You know, you’re health is the most important. If you believe your employer is putting you at risk or, if you, as an employer is concerned that he may be putting your employees at risk, consult an attorney. Think about people’s lives first – and while I know that means a lot of things and not just your health – we’ve got to do what’s right for all the population.
