May 26, 2020

Know Your Rights: What Your Employer Must Do To Keep You Safe As You Return To Work

BY Laney RuckstuhlWBUR

As Massachusetts begins to slowly reopen its economy, people who are not able to do their jobs remotely may be asked to return to work. This brings up a lot of questions around safety for businesses and workers alike, as not everyone may feel safe coming to the workplace.

As of Monday, offices outside of Boston can call up to a quarter of their workforce back. Some companies were given the green light to return to work last week, as long as certain safety precautions were in place. Others remain shuttered, awaiting the next phases of the governor’s reopening plans.

For whenever you may return to work, here’s what workers should know about what employers are required to do to keep them safe on the job, as well as what to do if they’re sick and how to report violations of state and federal rules.

What protections must employers provide workers?

(Courtesy Mass. governor’s office)

In announcing his reopening plans, Gov. Charlie Baker issued broad worker safety rules, as well as industry-specific guidelines.

All employers are required to follow social distancing protocols to ensure both employees and business patrons remain 6 feet away from each other. All employees must wear masks or face coverings.

Baker did not mandate that employers provide their employees with personal protective equipment, so workers may have to bring their own. In some industries, like hairdressing, employees may need to wear gloves or other gear.

Businesses need to offer spots where workers can wash their hands, and the new rules add that frequently touched surfaces have to be regularly disinfected.

Industry-specific guidelines will be released in waves as businesses are allowed to reopen in phases. Read the guidelines for construction, manufacturing, office spaces, laboratories, hair salons and barber shops, car washes and pet grooming.

What if you’re sick?

(Courtesy Mass. governor’s office)

Don’t go to work.

The state says employers must allow workers who show COVID-19 symptoms to stay home without fear they will be fired. Employers also need to create plans that address how they will handle such a situation and what protocols they’ll put in place for allowing workers to eventually return after an illness.

Under the federal Families First Coronavirus Response Act, most employees are eligible for up to two weeks of paid sick leave at their regular rate if they need to quarantine pursuant to local, state or federal regulations, or at the advice of a health care provider.

What if you have an underlying condition?

If you have an underlying condition that puts you at higher risk of severe illness or death if you contract the coronavirus, you should consult a doctor about whether it’s safe to return to work.

A doctor’s note does not necessarily ensure that you will be excused from work, but if a doctor deems you unfit for your current job, talk to your employer about whether you can be given accommodations to ensure your safety.

Those with health impairments are protected from discrimination under state and federal laws. Among the vast array of conditions that make a person more vulnerable to COVID-19 are asthma, serious heart conditions and diabetes. Read more about the employment rights of people with disabilities in Massachusetts here.

Labor attorney Judith Miller says you can ask your workplace for an accommodation that would make it safer to do your job if you have an underlying condition, such as a private office instead of a cubicle, staggering shifts to reduce your contact with others or being allowed to continue remote work.

“The employer is required to make sure that the workplace is safe so that you are able to return without contracting the virus,” Miller told WBUR’s Morning Edition host Bob Oakes.

Miller said Massachusetts’ rules can also give protections to people who are older than 65 and therefore considered high risk.

What if you need to care for a child or someone who is sick?

Massachusetts announced it is expanding access to emergency child care as businesses reopen. Emergency providers are available at no cost for people who have “no alternative to care.” You can find additional guidance on the program here.

Not eligible for emergency child care, or caring for someone who is sick? The federal Families First Coronavirus Response Act requires some employers to provide paid leave to workers who have to care for someone subject to quarantine or a child whose school or day care is closed.

The act applies to certain public employees and private employers with fewer than 500 employees. Health care and some small businesses with fewer than 50 employees may also be exempt. Read the act for more information about eligibility.

If you’re staying home with someone who is sick, you’re eligible for up to two weeks of paid leave at two-thirds of your regular rate. Those caring for children who can’t access child care are eligible for up to 12 weeks at that two-thirds pay rate.

What if your employer isn’t following required safety protocols?

First, try to address your concerns with your employer. It is best to do this in writing or in a group, if possible, so there is formal documentation. Federal law prevents your employer from retaliating against you for raising health or safety concerns.

As the state announced its reopening plans, Lt. Gov. Karyn Polito said employees who feel their workplace isn’t following state guidelines should call their local board of health to report violations. Employers who break the rules are subject to state fines, Polito added.

Attorney General Maura Healey’s office has also set up a hotline and online complaint form for workers who want to report conditions they feel are unsafe related to the pandemic.

The federal Occupational Safety and Health Administration (OSHA) is also charged with keeping workers safe. OSHA recognizes coronavirus as a safety hazard, and you can report violations of federal standards to your local branch. There are three area offices in the state. Find yours here.

You can also reach out to nonprofit legal services that deal with employment issues for pro-bono help. In the metro Boston area, try Greater Boston Legal Services and Eastern Regional Legal Intake for the larger eastern part of the state. If you live in Central or Western Massachusetts, try Community Legal Aid.

Can I be fired for refusing to come back to work?

Yes. Your employer is allowed to let you go if you don’t accept an offer of work.

If you quit your job because you feel unsafe, what assistance is available to you?

If you are in a job that feels unsafe to continue doing, at some point, you may feel you have to evaluate whether you feel it’s worth the risk.

Elizabeth Whiteway, a senior attorney in the employment law unit at Greater Boston Legal Services, said she is hearing from a number of clients who are weighing the risks of their job versus their own health and safety.

“They could take [sick] time, but eventually, what they’re looking at is, is the establishment reopening in a way that is going to allow me to continue to have assurances about my own health and also my ability to protect anybody else I’m coming into contact with?” Whiteway said. “At that point, it might make sense for a worker to look at the unemployment options.”

If you have “just cause” to quit your job — like, in some instances, an employer refusing to accommodate a health condition — you may be eligible for unemployment benefits but will likely have to provide additional information, and could be asked to give testimony in a hearing. You can find more information from the state about unemployment insurance eligibility here and check your initial eligibility here.

Whiteway said the good news is that the state unemployment program is considering these requests in the context of the pandemic.

“The whole definition of suitable employment is different in the middle of a pandemic,” she said.

Whiteway acknowledged that workers are also making decisions based on the state of the economy, and the uncertainty that lies ahead in attempting to find a new job if you leave your current one.

“I get why people are sort of saying, ‘Do I just stick it out? Do I stick it out?’ And I say, you know, you gotta decide: Do you think that you could end up in a hospital on a ventilator? Or what about somebody in your home to whom you bring back the virus?” she said.

Unemployment insurance in the state could soon be expanded further. A bill hit Gov. Charlie Baker’s desk this week that includes an expansion of the maximum allowable claims period, lifting a cap on dependency benefits and more.

If you lose job-based health insurance for any reason, you are eligible for a special enrollment period in the Massachusetts health exchange, or you can sign up for COBRA continuation coverage.