My Workplace is unsafe. Can I refuse to go to work?

Whether your safety concerns arise out of the Coronavirus / Covid-19 pandemic or other safety violations at work, you need to proceed with caution both to protect your health and safety but also your continued employment.

FEDERAL WORKERS:

The Department of Occupational Safety and Health advice:

If my workplace is unsafe, what can I do?

If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention. At any time, a worker may file a complaint with OSHA to report a hazardous working condition and request an inspection. If the condition clearly presents a risk of death or serious physical harm and there is not enough time for OSHA to inspect, the worker may have a legal right to refuse to work. File a complaint here.

More Information OSHA File a Complaint. OSHA COVID-19 Guidelines

Washington Workers:

Contact the Department of Labor and Industry for information about Washington State Worker's rights or to file a complaint for unpaid wages or safety violations: LNI Complaints.


Washington Patients:

Concerned about a Medical Facility or Provider? File a complaint with the Department of Health.

What does it mean to be an At-Will employee in Washington State?

It seems that as a society we have a lot of notions about work and what an employer can and cannot do under the law. Very few of these commonly held beliefs are true. In my day to day life as an attorney who focuses her work on employment law, I spend quite a bit of time discussing potential legal claims with people who have been mistreated at work. Very rare is the call where a person calling was, in my opinion, not mistreated by the employer. In one such rare case, the gentlemen calling had terrorized a female coworker and was genuinely confused about why he was terminated. Not quite as rare, is the caller who has been mistreated and has a remedy under the law. The most common caller has in their, and my, opinion been mistreated but has no legal remedy under the current law. Most callers are victims to an employment system that has become increasingly callous and indifferent to the plight of the worker.

The system I am describing is called At-Will employment. Washington State is an At-Will employment state.  Legally, “At Will” means one can be fired at any time, without cause unless they are specifically excluded from that system. Examples of exclusions include,  government employees, tenured professors, unionized workers and employees working under a contract and sometimes an implied contract. At-first blush, this  uniquely American quirk of labor law seems only fair. Both the employee and the employer are free to part ways at any time. 

However, just because both sides are "free" to part ways at any time doesn't mean that doing so has the same effect on each of them. The risk and burden of destabilizing financial loss is much more likely to fall on the employee. At-Will relationships between employees and corporations allow corporations to expand and grow unheeded by financial responsibility to their employees. Corporations can take bigger risks and if they fail, they can cut the burden of labor costs almost without restriction. This helps create more value for shareholders, but at a cost to worker stability and security.

Callers often contact me and tell me that they understand that they are At-Will, but still think that things like seniority, performance metrics - positive reviews, workplace success, a recent raise are all proof that they should not have been terminated. Of course, these are logical feelings that arise from our notions of fair play. They arise from a time when workers generally could not be fired without "cause" and could not be let go with out notice and some sort of "due process." Worse yet are the callers who have been subjected to bullying, the inhumane "professional improvement plan" or simply never supported in their role.  Entire industries are notorious for overworking, underpaying and mistreating their employees, but only in the most extreme cases does that behavior actually run afoul of the law. Washington State does have anti-bullying and anti-harassment laws mostly related to our Public schools. However, for most other employees a bad manager can easily ruin your life without doing anything illegal.  At-Will contracts and laws codify the power imbalance between the worker and the employee with little regard to the dignity of workers or to their human rights. 

 “It is employment at will and its fundamental assumption which is the major barrier to establishing a system of collective bargaining,” wrote the labor lawyer Clyde W. Summers. “In American labor law, the monarchy still survives,”

He summarized some alternative polices from around the globe,

In other countries, employees are viewed as members of the business enterprise. In Germany, for example, the employee-elected works council has, in addition to representation on the supervisory board, co-determination rights over decisions such as work schedules, leaves, safety and health measures and guidelines for hiring, transfer and dismissal. If the employer and the works council cannot agree on these matters, the issues are submitted to binding arbitration. In Sweden, the union must be consulted on "any matter relating to the relationship" between the employer and the employees. This includes such matters as a decision to introduce new machinery, sell the company or hire a new managing director. In Japan, the union is consulted on nearly all matters of employee interest and employees are commonly referred to as "members of the family. 

Jefferson B. Fordham Professor of Law Emeritus, University of Pennsylvania Law School; J.S.D. 1952, Columbia; J.D. 1942, Illinois; B.S. 1939, Illinois; expertise in labor law and comparative law. I. Payne v. Western & Ad. R.R., 81 Tenn. 507 (1884). 66 U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW [Vol. 3:1 ]

It is my hope that as we emerge from this pandemic induced hibernation that we will consider not just economy protecting adjustments that happen to benefits all citizens - like detaching medical insurance coverage from full-time employment, but also that we will seek and secure policies that correct for the imbalances of power and thereby restore a rightful sense of dignity to all workers.

To read more about the history of the At-Will employment doctrine click here.

I'm afraid to go back to work because I fear exposure to Covid-19? Can I lose my job if I refuse?

As the State of Washington considers opening businesses in a phased opening, many employees are concerned about their safety. Some will undoubtedly refuse to go back in asking for accommodation - greater safety measures or requesting to continue to work from home. What are an employee's rights? What can a employer demand? Well it depends.


Employees should understand that if they have a disability they should ask for accomadation, however the legal  ADA PRECEDENT states that an EMPLOYEE IS NOT ENTITLED TO THE ACCOMMODATION OF HIS/HER CHOICE; ONLY TO A REASONABLE ACCOMMODATION

Examples of reasonable accommodations may look like:

Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.
Additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.
Elimination or substitution of particular “marginal” functions (whether on an alternative or temporary basis).

For example, a worker doesn't want to go to work and risk accommodation b/c my souse is a cancer survivor and infection could kill them. Normally the employer would have no requirement to accommodate that employee. However, employers should be careful there is case law supporting disability by association. Same as if a employee's souse is a nurse or doctor and other workers are afraid of exposure through that employer. to be continued....

Employers can get more legal information from https://www.cozen.com/coronavirus-updates 

If I've had, or been exposed to, Coronavirus / Covid-19 am I immune? If I am immune, for how long do I have immunity?

This morning I attended a webinar: Straight Talk: Health care leaders, researchers provide update on state of care amid COVID-19

Speakers were: Geoffrey Baird, MD, PhD: Pathologist and Interim Chair of Laboratory Medicine, UW Medicine; Director of the Clinical and Toxicology Chemistry Laboratory, Harborview Medical Center Nancy Davidson, MD: President & Executive Director, Seattle Cancer Care Alliance; Senior Vice President, Clinical Research Division, Fred Hutchinson Cancer Research Center; Head, Medical Oncology, University of Washington George Haddad, MD: Co-founder, COVID Response Partners Jeff Tomlin, MD: CEO, Evergreen Health.

What I wanted to know was when antibody testing will be widely available in the Seattle area and if being exposed to, or acquiring the virus and surviving, will create immunity to future exposures.

Unfortunately, the answers were that testing is coming but supply chain issues remain a problem (not enough swabs). So it is slow. Also, we wont know about the immunity question until after testing is wide-spread.

Interesting information: One patient has been asymptomatic (no symptoms) but has now tested positive for the virus for 72 days. Those numbers are scary because this patient had no reason to know they were infected felt fine (related to those symptoms but was hospitalized on unrelated issues) they otherwise could have be walking around infecting others without knowing it. This is why masks are important even if you feel fine.

Dr. George Haddad said, testing will bring on a new level of chaos. The testing is just one step and we need to figure out the best test (no false negatives or positives). Talked about testing workers everyday. (not practical with the very uncomfortable nasal swap test.)

Are Doctors offices and hospitals extra dangerous right now? Dr. Nancy Davidson says ironically these places are safer than normal b/c of the screening in place and the heightened vigilance. Suggests getting your routine health care and go to the ER if you need emergency help. Dr. Baird says doctors and researchers know how to use PPEs and to not cross contaminate. 

Should you avoid going to the hospital or Doctors office to conserve resources? There is capacity at local Washington hospitals and ER departments to take care of you. With the cancellation of elective procedures there is no overwhelm of the medical systems in Wa right now - if you need help get it.


Back to work - Best Practices - Business must act like a hospital
Psychology of the Pandemic - get over it with knowledge and education
New normal - never go to work with the sniffles.
Screening for fevers
Hand washing
Disinfecting
Not touching your face
Productivity - EEs must feel safe to go back to work
A lot of people will need or want to go back to face to face work other organizations are realizing that they can do more than they thought remotely.

Financial health of the medical system -  necessarily devastated had to do it to save lives but we need to open things back up and start making up for the millions in losses. But the system needs to be overhauled so it is not so vulnerable to things like this.

Contact tracing and tracking?  If you have an employee who is positive when does the State get involved to track and trace?

   Geoffrey Baird - Research:  Alaska Fishery business - isolated population on a boat - study showed asymptomatic carries. Also in meat packers in Eastern Washington etc. learning a lot and its pretty scary. Your risk factors  are unique to your circumstances. 1990 football team Norovirus showed play by play almost contact and viral transmission. 

Dr. Haddad - you have to do baseline testing to get the information we need. Look at how other countries are doing it and what is working: see South Korea and Germany Berlin research facility doing interesting things. What is happening in other countries - embrace the complexity stay curious and seek the science to solve the problems.

Will we see a spike in numbers in the fall? Will PPEs  be scarce again? Cleaning supplies and masks. 

 

Want to Stay on Unemployment? It's likely not up to you.

In some cases workers are realizing that with the federal stimulus money they can do better financially by staying out of work. Especially if they are taking care of kids that would normally be at school or otherwise engaged outside the home during work hours. As an employment attorney I field a few of these "do I have to go back to work" calls a week. 

This article from SHRM explains: "If you are recalled to work, your unemployment is stopped. It isn't really your choice." 

Lindsey White, an employment lawyer and partner at Shawe Rosenthal in Baltimore, said, "The employees who are saying, 'Thanks for the offer of work, but I would rather stay on unemployment' won't be eligible for unemployment. That is going to be a rude awakening [for many]."

Read more here: What happens when unemployment pays too well?

The article addresses how Workers and Employers can get creative to solve some problems: 

For example, when employers are considering terminating employees for continued performance issues, the employees will volunteer to be laid off (not resign, resigning forfeits unemployment benefits) so they can collect unemployment, said Stephanie Weinstein, an employment lawyer with Marcus & Shapira in Pittsburgh. In those cases, the arrangement benefits both parties.

For an employee who might feel too overwhelmed by pandemic-related caregiving obligations to go back to work, there is another option: The Families First Coronavirus Response Act (FFCRA). The law requires employers with fewer than 500 workers to offer 80 hours of paid sick leave for caregiving at two-thirds the employee's regular rate of pay, capped at a maximum of $200 a day or $2,000 total, if the employee is unable to work or telework. Paid sick leave is also available for individuals experiencing symptoms of COVID-19, in quarantine or caring for an individual under quarantine. 

The same law expanded family and medical leave to cover employees who are unable to work or telework because of the closure of a child's school or child care facility. The first 10 days of the 12 weeks of leave are unpaid (although employees can use the paid sick leave to get paid at two-thirds their regular rate for this time). The last 10 weeks are paid at two-thirds of the employee's regular rate, capped at $200 per day or $10,000 total, White said. Employees can take the leave between April 1 and Dec. 31, 2020.

The extended family leave can also apply to people who work remotely. "Let's say an employee's husband can watch the kids in the late afternoon through evening, but the employee normally works later in the day," Weinstein said. "The employee could work with her employer to change her work hours or also possibly take some intermittent leave." The arrangement should work both for her employer and for the employee.

Added White: "If someone is allowed to work from home, you can take family leave intermittently if the employer agrees. For example, the mom can take four hours a day and the dad can take four hours a day, but they can't both be off from 8 a.m. to noon." Instead, they could take leave in shifts to watch the children and help them with schoolwork.

Employees who are not getting their full salary through the FFCRA may be eligible for partial unemployment benefits, White said. Even where an individual receives partial unemployment benefits, he or she will receive the extra $600 payment from the CARES Act.

Washington's Unemployment department paying out record high benefits in response to Covid-19 shutdown but still struggling to keep up.

Washington State's Unemployment department put out a press release this morning showing its progress it getting State and Federal benfits into the hands of Washington (ex) Workers. Of 1.4+ million claims 545,178 individual have received benefits totaling 1.4 billion in benefits. 

The Release:

Unemployment claim type	For week of  April 26-May 2	For week of April 19-25
Regular Unemployment Insurance (UI) initial claims	100,762	137,605
Pandemic Unemployment Assistance (PUA) initial claims	59,234	190,948
Pandemic Emergency Unemployment Compensation (PEUC) initial claims	40,267	168,165
Continued/ongoing weekly claims	885,768	959,190
Total claims	1,086,031	1,455,908

Since the week ending March 7 when COVID-19 job losses began:

• A total of 1,428,775 initial claims have been filed during the pandemic (959,196 regular unemployment insurance, 254,197 PUA and 215,382 PEUC)
• A total of 810,538 distinct individuals have filed for unemployment benefits
• ESD has paid out nearly $2.14 billion in benefits to Washingtonians
• 545,178 individuals who have filed an initial claim have been paid

“Since the COVID-19 crisis began in early March, Employment Security has sent $2.14 billion into the pockets of more than half a million Washingtonians,” said Employment Security Commissioner, Suzi LeVine. “This makes an enormous difference to those individuals and their families, and we are humbled to be able to provide these services in such a critical time. That said, there are approximately 57,000 who are waiting because there are issues with their claims we are working to resolve. Getting those Washingtonians their benefits is our agency’s top priority. We are doubling down on activities already underway to reach our goal of getting all of those claims in adjudication resolved or paid by June 15. We will be posting more information and details on our progress on our website in the coming days.”

See more stats here.

I'm worried about the unpaid claims and the large number of denied claims. I don't know what to say about that except hang in there keep applying, follow the instructions in any communication you get from the department. Reach out to the unemployment law project; here; if you have been denied, and keep job searching:  Wa State jobs.

Governor Inslee rolls out a four part plan to reopen the State.

At risk citizens should continue to stay home and take precautions when on necessary trips out of the home until phase 4. Then during phase four they should continue to practice social distancing adn other precautions but are allowed out tot he same degree as everyone else. At risk is defined as those persons 65 or older or with underlying health issues that may put them at greater risk of infection or reduced chance for survival if infected with the Covid-9 virus.

The four phases outline the recommend easing of restrictions over a number of weeks. Including increasing essential travel, allowing small gatherings and moving toward larger gatherings (of less than 50) as the summer nears. But this is still a massive restriction on entertainment as we knew it pre-covid. What about weddings? Concerts? Festivals? Fundraising events? It is not clear when things like that will get back to normal. See the Governor's chart here.

Unemployment Law Project may have the answers you need regarding Washington State's unemployment benefits coverage in the age of Covid-19

Here are there top questions of the week:

My job is considered essential, but I have some health issues that put me at risk. Do I have to keep working?

No. Even if your work is considered essential, you should not put yourself at risk. It’s preferable to stay attached to your employer if possible. Let your employer know that you cannot return until it is safe. Under new rules, you can qualify for unemployment benefits if you are at high risk and are staying home based on medical advice about the dangers related to that risk. File for unemployment and notify your employer when you can return.*

Gainey Law Note: However, the risk must be to you personally the analysis may be different if the at risk person is a family member. 

My employer has reduced my hours. Do I have to quit to get unemployment?

You can apply for benefits and keep working if you were hired to work full time and have your hours temporarily reduced by less than 60 percent. Report the income earned each week you claim and your benefit amount will be adjusted.*

Gainey Law Note: Please do not quit your job without consulting an attorney as you may forfeit, or make it more difficult to obtain, your ESD benefits. 

 

I started on unemployment several weeks before the COVID-19 crisis. My benefits are about to run out. What should I do?

Under new rules, between March 29 and December 26, 2020, you can receive up to 13 weeks of benefits in addition to the regular 26 weeks.*

* These answers are not intended to be legal advice. For free telephonic legal advice, please contact us at (206) 441-9178 or toll free at 1(888) 441-9178.

May is Older American's Month (A message from the EEOC Chairwoman Janet Dhillon)

Statement by EEOC Chair Janet Dhillon on Older Americans Month May 2020

Message from Chair Janet DhillonThe EEOC enforces the ADEA with enthusiasm, as we do with all other statutes.  After all, one basic principle and spirit informs all the laws we enforce.  It should be a no-brainer that no one should be denied a job -- or treated unfairly at one – because of their age.  But I’m afraid we have to keep educating and enforcing in every way we can – including litigation as a last resort.
Read more here.