What Are Your Rights in the Workplace During a Pandemic?

While many people are looking for jobs, many are headed back to work or never were given the opportunity to work from home.

For those who are required to be in that space, there are some new concerns.

If someone you work with gets COVID-19, do managers have to disclose that to employees? And does the office have to temporarily shut down if more positive cases come up?

We spoke to Dallas-based attorney Andy Trusevich, who focuses on employee rights and labor law, for answers.

He said he’s been incredibly busy with calls from employers and companies, asking some pretty interesting questions.

"The number one calls I get are, 'We want people to come back. Can we force them to come back? If someone says I don't feel safe, can we fire them?' My recommendation is no, don't fire them!” he said. “Communicate with them. Work something out. There has to be a happy medium. If you can't agree whether it's daylight or night, agree that it's dusk."

He clarified there are no specific laws requiring businesses to report COVID-19 cases and it's a mixed bag on how workplaces are reacting.

But businesses are caught between meeting the requirements of existing agencies/laws:

• Occupational Safety and Health Administration (OSHA), which mandates they provide a safe work environment.
• HIPPA/Americans with Disabilities Act (ADA), which says you have to keep a person's health information private.

For companies to avoid liability issues, Trusevich said there are some things they must do if someone tests positive.

First, they should designate someone, preferably a human resources representative, to conduct an investigation.

“And let’s say John or Cindy says to that designated HR person, I’ve tested positive for COVID-19. The first thing the employer has to do is keep that confidential. Even if it’s a small business and people figure out who it is, they cannot reveal that person’s name under HIPPA or the ADA,” said Trusevich.

Second, they must ask that employee who is tested positive who they have been in contact within the last 14 days.

“The CDC defines close contact as 6 feet or less for prolonged periods of time, which is 15 mins or longer,” said Trusevich. “The designated HR person should go to those people and say, ‘You have been identified by someone who has tested positive for COVID-19 as being in close contact for the last two weeks. We recommend you go to a doctor and get tested.’”

The final thing he said an employer should do to communicate to the other employees that someone in the building has tested positive.

“They can say, ‘We’ve asked that person for any close contacts and if you haven’t been contacted, you’re not one of them,’” he said. “But at least let them be aware, because who knows where that person has been in the building.”

Trusevich also employers should also be following safety protocol by enforcing social distancing and providing PPE for the sake of safety and liability.

“Even if a company subscribes to worker’s compensation, if they are reckless, that’s gross negligence. And gross negligence is not covered under workers comp. Employers could be sued by employees even if they’re covered under workers comp if they are reckless,” he said. “Communicating is the keyword. If you communicate with your coworkers, your coworkers are going to be happy. Happy employees tend not to sue, unhappy employees tend to sue.”

He said if your workplace is not following safety guidelines or you feel unsafe, have a conversation with your manager and communicate your concerns.

"We are in a new world, until there's a vaccine, until there's a cure. Which i'm sure will happen but that could be a year away," Trusevich said. "I think companies need to continue to allow people to work remotely where possible and not just want people back just to fill up the building."

If all else fails, Trusevich said you can actually report a company or business anonymously to the county or state health department.

“You can contact OSHA but this administration has cut back on some of the enforcement powers of OSHA,” he clarified. “The local county and state health departments are very good and take this very seriously. If there’s an allegation, they’ll look into it and you can remain anonymous.”

Trusevich further added that the law does not force any business to close down if there is a COVID-19 case.

"But at the same time, you have to figure out what is the best practice. If it’s one person, what you can do is sanitize," he said. "But if it's like a meatpacking plant where you have 20, 30, 40, 100 people -- you have no choice but to close down for liability reasons. And there’s liability attached to COVID-19.”

There's also the Families First Coronavirus Response Act (FFCRA), further helping to protect employees. It requires certain employers with less than 500 employees to provide workers with paid sick leave or expanded family and medical leave related to COVID-19.