大流行期间的工人安全:处理员工对暴露和COVID-19员工的恐惧

(Last updated April 6, 2020)

COVID-19大流行给雇主带来了前所未有的挑战.  While many retail establishments and other businesses have voluntarily or involuntarily shut down and many other organizations are allowing employees to work remotely, 其他公司则试图以满负荷或缩减的产能继续运营.  Those who are maintaining on-site operations may find that some employees refuse to come to work because of COVID-19 concerns.  这对关键行业的雇主来说尤其成问题, such as groceries and health care.  Conversely, employers who are allowing workers on premises must face the real concern that one or more of their employees may fall ill, 使他们对与他们一起工作或附近的其他人构成危险.  雇主应该准备好应对这两种情况. 

我们都在探索这个新世界，以及它将如何影响就业实践. 以下是对这些问题的讨论，了解到我们是, to some degree, 猜测政府机构将如何审查具体情况.  最好的办法是采取一切必要措施保证员工的安全, which will require employers to listen to their employees’ concerns and exercise flexibility when dealing with issues such as leave and teleworking.

如何应对拒绝上班的员工

像大多数州一样，弗吉尼亚承认“随意”雇佣.  Under this system, barring a contract that says otherwise, 雇主可以以任何理由或没有理由解雇雇员, 如果终止合同不违反法律.  Currently, there is no law preventing most employers from remaining operational if they meet certain safety requirements.  如果政府下令实施隔离，那么这个问题就没有意义了.

然而，这并不意味着在没有隔离的情况下，雇主可以为所欲为.  所有雇主都必须遵守《皇冠搏彩APP下载》, 哪条规定，如果员工认为自己处于“迫在眉睫的危险”中，他或她可以拒绝工作.”  The Act defines “imminent danger” as “conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.职业安全与健康管理局(OSHA), which enforces the Act, has interpreted this to mean “[t]here must be a threat of death or serious physical harm” or “a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.“迫在眉睫的危害的一个例子可能是在没有防护设备的医疗环境中工作.

The average workplace, however, 无特殊情况不符合“迫在眉睫的危险”标准.  In a recently issued guidance, OSHA将大多数工作场所评为COVID-19风险较低(警告)或中等风险.  The latter category includes employees who work with the general public in an area where there is ongoing community transmission of the disease.  Employers should still tread with caution when dealing with employees who will not work during this pandemic.  某些患有慢性疾病的人, such as heart disease, diabetes, or asthma, 更容易感染病毒，如果他们生病了，更有可能出现严重的健康问题.  Conceivably, such individuals, 以及从事高风险职业的员工, 可以声称强迫他们工作违反了OSHA的规定吗.  Employers should take the time to listen to employees’ specific concerns and try to work with higher risk employees to minimize exposure.  在可能的情况下，雇主应该考虑允许员工远程工作.  If this is not feasible, employers should do what they can to make the workplace as safe as possible by following health guidelines established by the CDC.

Employers should also be aware of the provisions in the recently-enacted Families First Coronavirus Relief Act (“FFCRA”).  Part of that legislation, the Emergency Paid Sick Leave Act, requires employers to provide up to two weeks of paid sick leave for employees who are unable to work or telework due to a government-imposed quarantine or “[t]he employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” If this occurs, the employer can require the employee to provide the name and contact information of the health care provider, 他们被建议进行自我隔离的原因, and the dates of the expected leave.

如果员工因为害怕病毒而拒绝上班, then the employer must assess the situation to determine if the employee has a reasonable fear of imminent danger or if they have been instructed by a health care provider to self-quarantine.  If not, 并且员工没有因为FMLA或ffcra合格的原因而休假, then there is no right to paid leave.  The employer may offer unpaid leave, 要求员工休假, or, in certain situations, 如果员工拒绝返回工作岗位，对其进行处罚.  However, 雇主在采取任何行动前应咨询法律顾问, 特别是如果员工属于高危人群.

In any event, 雇主应谨慎对待任何与COVID-19相关的健康问题，并将其视为机密, 就像HIPAA和ADA涵盖的任何医疗信息一样.  They should also be aware that the Occupational Safety and Health Act prohibits employers from retaliating against any worker who raises concerns about safety or health conditions.

应对工作场所可能感染COVID-19的员工

On the other side of the coin, 雇主在与可能感染COVID-19的员工打交道时应谨慎.  OSHA requires employers to furnish their employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.表现出COVID-19症状的员工肯定会被视为“公认的危险”,尽管应该指出的是，COVID-19与其他常见疾病具有相同的症状.

The Equal Employment Opportunity Commission (“EEOC”) has issued new guidance on how COVID-19 affects employment actions under the Americans with Disabilities Act (“ADA”).  The EEOC clarified that an employer can require employees to leave the workplace if they have COVID-19 or display the symptoms of the illness. Generally, 《皇冠搏彩APP下载》禁止雇主测量雇员的体温, 但平等就业机会委员会已经确认，在公开宣布的流行病紧急情况下, such as COVID-19, employers are permitted to require employees to have their temperature taken as long as the employer treats the findings as confidential under the ADA.  如果雇主决定给员工量体温, it should only be done as part of a comprehensive COVID-19 response plan that includes such things as educating employees regarding COVID-19 symptoms and screening interviews to determine other risk factors, limitations on non-essential travel, and encouragement to work from home. 如果房东或其他实体寻求有关患有COVID-19的员工的信息, employers should defer to public health authorities when it comes to releasing any information about employees who test positive for COVID-19.

OSHA and the CDC have issued a joint guidance for employers that explains how to maintain a safe work environment.  One of the suggestions is that workers displaying symptoms of COVID-19 should be immediately isolated from other employees in a closed room until they can be removed from the workplace.  The guidance also suggests that employers strongly encourage employees who are feeling ill to stay home.  Any employee who has COVID-19 and any employees who worked closely with that employee should be sent home for at least 14 days.

政府对COVID-19的反应每天都在变化.  Employers faced with COVID-19-related matters that may affect their employees should seek the advice of counsel before making any decision that may have legal repercussions.

Jeff Wilson is a Pender & 专注于劳动法事务的皇冠线上买球平台律师, 包括咨询和商业诉讼.