Healthcare workers have a high risk of contracting the virus because of their exposure to COVID-19 patients. Detailed herein are the employment laws that apply to healthcare employees during the COVID-19 pandemic.
During this Coronavirus (COVID-19) outbreak healthcare workers serve a vital role in providing medical care to those who are victims of this virus. Nevertheless, healthcare workers have a high risk of contracting the virus because of their exposure to COVID-19 patients. Detailed herein are the employment laws that apply to healthcare employees during the COVID-19 pandemic.
Healthcare employees may be protected by the National Labor Relations Act (NLRA) during the COVID-19 outbreak. The NLRA protects any “concerted activity” designed to increase workplace safety, so long as the request relates to the safety of all employees during the outbreak. The protected activities can include refusing to come to work for safety reasons or declining to work without a mask due to a concern for all employees’ safety. The NLRA provides employees the right to act with and on behalf of all co-workers to address work-related issues in many ways. An employer cannot discharge, discipline, or threaten an employee for this “protected concerted” activity.
The Occupational Safety and Health Act (OSH Act) provides employees the right to work in a safe work environment. Under the OSH Act, employees who believe they are working in hazardous working conditions may bring their concerns to the employer’s attention. The Administration of Occupational Safety and Health (OSHA) has provided resources to help employers and workers prepare for and address potential health risks from the coronavirus in the workplace. OSHA has also created some guidelines for employers regarding the recent COVID-19 outbreak. The OSHA guidelines include guidance for employees with very high exposure risks such as healthcare workers. OSHA recommends that these types of workers wear personal protective equipment (PPE) such as gloves, a gown, face shield or gloves depending on their job tasks and exposure risks. Such denial by healthcare providers can be considered an OSHA violation.
The U.S. Centers for Disease Control and Prevention (CDC) currently recommends a cautious approach to persons under investigation (PUI) for COVID-19. Healthcare personnel evaluating PUI or providing care for patients with confirmed COVID-19 should use Standard Transmission-based Precautions. Healthcare facilities are responsible for protecting their employees from exposure to pathogens, including by providing appropriate PPE. However, there has been a reported shortage of some of the protective equipment, and for that reason, the CDC has provided an interim infection control and prevention guide. The CDC presently recommends that the general public should avoid using facemasks and only patients with confirmed or possible COVID-19 infection should wear a facemask when being evaluated medically. Healthcare personnel should adhere to Standard and Transmission-based Precautions when caring for patients with COVID-19 and healthcare providers’ refusal to adhere to these guidelines could be liable under OSHA law.
ARE HEALTHCARE WORKERS REQUIRED TO WORK EVEN IF THEY ARE AFRAID OF GETTING COVID -19?
The outbreak of COVID-19 is necessarily stressful for healthcare workers. While being afraid of COVID-19 does not give rise to a protected activity which would allow you to request time off, should the concern be due to a safety guideline violation or if you are suffering symptoms you may have legal options to protect your employment under the NLRA, OSHA, and the First Corona Response Act. For a complete guide, we strongly recommend consulting with an attorney before making any decision that could affect your employment.
Additionally, OSHA guidelines and the CDC recommends that employers provide psychological and behavioral support so that employees are able to address their stress. In addition, OSHA recommends that employers provide specialist training so that their employees can complete their tasks while maintaining a safe and healthy environment.
IF I AM ABSENT FROM WORK FOR HAVING COVID-19 SYMPTOMS CAN I BE TERMINATED?
If you are experiencing COVID-19 symptoms you may be protected by the First Coronavirus Response Act (“FFCRA”). The FFCRA provides certain employees the opportunity to take leave for having COVID-19 symptoms. Additionally should you not be protected under the FFCRA, you may be entitled to time off under the Family and Medical Leave Act.
Under both the FFCRA and FMLA, you may have a claim if an employer terminates you for requesting leave due to COVID-19 symptoms. For more information about the FFCRA, you can click here.
CAN A HEALTHCARE PROVIDER DENY ITS EMPLOYEES THE USE OF MASKS DURING THE OUTBREAK?
It depends on the specific situation. OSHA’s respiratory protection standard, which includes the use of most safety masks in the workplace states that a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Furthermore, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators if the employer determines that such respirator use will not in itself create a hazard”. However, there is no recognized health or safety hazard when employees work near other people and thus there is no need for a mask or respirator. Absent a disability or an occupation where employees work directly with those impacted by COVID-19 the employers are not required to provide masks. In cases where the employee works specifically attending to COVID-19 patients, the employer may be required to provide personal protective equipment to those employees treating the infected patient.
WHAT CAN I DO IF I BELIEVE MY EMPLOYER IS BREAKING OSHA SAFETY GUIDELINES
If you believe your employer is not following the OSHA standards and there is a safety or health hazard you may bring this to the attention of your employer or you may file a complaint with OSHA. The complaint should be filed as soon as possible after noticing the hazard. A signed complaint is more likely to result in an onsite inspection. We would recommend you speak to a qualified labor and employment attorney prior to filing a charge.
CAN MY EMPLOYER RETALIATE AGAINST ME FOR BRINGING TO LIGHT SAFETY CONCERNS AND WRITE ME UP OR TERMINATE ME?
Both the OSH Act and the NLRA contain anti-retaliation provisions. An employee who believes that he or she has been retaliated against by an employer in violation of any of these statutes may file or have their attorney file, a complaint alleging such retaliation.
If you believe you have been terminated or retaliated against for voicing your concerns about coronavirus (COVID-19) in the workplace, we recommend scheduling a consultation with a qualified labor and employment lawyer. An experienced labor and employment attorney can advise you on an appropriate legal strategy that ensures your legal rights are protected, and your legal claims are successfully advanced.
WHEN SHOULD I CONTACT AN ATTORNEY?
We would recommend that you discuss your employment situation with an attorney if you believe that you are being retaliated against, before you decide to resign due to COVID-19, or if you are terminated/ demoted or laid off as a result of COVID-19. Lastly, if you believe your employer is using COVID-19 as a false excuse for termination, when in fact they may be terminating you for another potentially unlawful reason, you should also consult with a qualified labor and employment attorney.
Should you wish to schedule a consultation, please fill out our Employment Law Contact Form and someone will contact you as soon as possible. The Linesch Firm has almost 40 years of experience representing clients in Employment Law matters.
- U.S. Centers for Disease Control and Prevention COVID-19 webpage.
- Department of Labor- Response to Coronavirus
- Psychological First Aid for First Responders
- OSHA Guidance on Preparing Workplaces for COVID-19