By Meera Jagannathan
Workers who fear for their on-the-job safety due to preexisting health conditions could have the right to reasonable accommodations under federal disability law. But people whose employers simply aren’t providing safe working conditions might have to take matters into their own hands, some experts say.
As essential workers continue to risk COVID-19 exposure at work, a third of grocery-store workers say their employer hasn’t taken the proper steps to keep employees safe during the pandemic, according to a survey conducted this summer for the Ontario-based frontline worker training company Axonify, which polled 2,000 frontline workers across a variety of industries in the U.S., U.K. and Australia.
Meanwhile, a July survey of more than 21,200 nurses conducted by the National Nurses United union found that just 24% of nurses believed their employer was providing a safe workplace, and 87% of hospital nurses said they had reused at least one form of single-use personal protective equipment.
And it appears that many workers who have the luxury of working remotely would like to keep doing so: More than six in 10 professionals who responded to a recent LinkedIn survey said they wanted to continue working from home in some capacity after their workplace reopened, and a quarter preferred that option permanently.
“Their main reason? They don’t feel safe going back to work yet,” Caroline Fairchild, an editor-at-large at LinkedIn News, wrote in a blog post . “Some 57% of workers in our survey cited safety as a top concern.”
For starters, workers who have safety concerns due to a physical condition that puts them at higher risk for COVID-19 complications — or a mental-health condition made worse by the pandemic — could be entitled to a reasonable accommodation under the Americans with Disabilities Act if there is one that allows them to still do their job, said David Fram, the director of ADA services for the nonprofit National Employment Law Institute.
A disability, as defined by the ADA, is “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” Major life activities can include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
“The way it comes up in the COVID context would be if somebody were to say, ‘I’ve got an underlying condition, like [multiple sclerosis] or asthma, and it’s because of that underlying condition that I can’t be around others in a workplace, where I’ve got this real fear that I could contract COVID,’” Fram said.
Another example: A person with a severe anxiety disorder could see their symptoms exacerbated when they’re around other people in a workplace where they fear coronavirus exposure, he said.
The employee would engage in the so-called interactive process with the employer to determine “essential functions” fundamental to the job and identify possible accommodations. A reasonable accommodation in this case might be to modify the physical workplace, like by erecting plexiglass barriers or separating desks, or to modify a policy, like by changing the employee’s schedule to help them avoid crowded rush-hour mass transit, Fram suggested.
Employees hoping to work from home due to safety concerns would need to both have a disability and be able to perform their job’s essential functions at home, Fram added. But in the COVID-19 context, he said, “a lot of employers have gone beyond what they have to do.”
“Face it: Many jobs that can’t be done fully at home, employers have been letting people work at home because it’s in everybody’s interest,” he said. “Technically that’s going beyond the ADA, if an employer is letting somebody work at home where not all of the essential functions can be done at home — so it’s not bad, it’s just going beyond what the ADA requires.”
If an employee believes their employer isn’t complying with the ADA and has been unsuccessful in trying to communicate with the employer directly, they can file a charge with the Equal Employment Opportunity Commission or a state regulatory agency that investigates disability compliance, Fram said.
“Even if that’s not your primary concern, if there’s someone in your household that is sick or if you have a child at home, you may be able to leverage that to take sick leave,” employment attorney Paula Brantner, the principal and president of the firm PB Work Solutions, told MarketWatch. Workers may also have rights under the Family and Medical Leave Act (FMLA) .
The Occupational Safety and Health Administration (OSHA), the federal agency tasked with ensuring safe working conditions, has issued guidance for employers on preparing workplaces for COVID-19 and safely returning to physical workplaces . It also directs businesses to consult Centers for Disease Control and Prevention guidance .
Employees can file a confidential complaint and request an inspection of their workplace if they believe their employer isn’t abiding by OSHA standards or there’s a serious workplace hazard, OSHA says .
“Generally speaking, a complaint that just reads, ‘I’m afraid to go to work because of COVID’ is not going to rise to the level that OSHA is going to take exception to,” John Ho, an employer-side attorney and chair of the OSHA practice at Cozen O’Connor, told MarketWatch. It’s important to provide specific examples, such as an employer failing to provide sufficient PPE or facilitate safe social distancing, Ho said.
OSHA has enforced worker safety during the pandemic under its general duty clause, which requires employers to furnish a workplace “free from recognized hazards likely to cause death or serious physical harm.” But the agency has opted not to issue an emergency temporary standard, a move backed by unions like the AFL-CIO , Democrats like Sen. Elizabeth Warren and other groups , who say it would provide stronger, enforceable rules requiring employers to protect workers from COVID-19.
A Labor Department spokesperson told MarketWatch that “OSHA has preexisting requirements and standards that not only remain in place and enforceable, but also apply to protecting workers from the coronavirus.”
“These include conducting hazard assessments, ensuring sanitation and cleanliness, providing Personal Protective Equipment (PPE), and requiring training and education, as well as the General Duty Clause of the Occupational Safety and Health Act (OSH Act),” the spokesperson said. “A panel of the D.C. Circuit Court unanimously ruled that OSHA had reasonably determined that an emergency temporary standard is not necessary at this time.”
With that said, some states have moved to pass their own emergency standards, the first among them Virginia , which requires employers to mandate social distancing, mandate face coverings for customer-facing workers or those who can’t practice social distancing, provide frequent handwashing or hand-sanitizer access, and notify employees when coworkers test positive.
There is no “private right of action” under OSHA, Brantner said, meaning a lawyer can’t sue on an employee’s behalf.
“OSHA has limited capacity for enforcement, which is not supplemented by the ability to bring a private lawsuit against your employer for OSHA violations,” she said. “The lack of having those tools, coupled with the lack of funding for OSHA generally, and the dramatically expanded number of cases during the pandemic, means that it is unlikely that they are your first and best line of defense against this problem.”
And Debbie Berkowitz, a former OSHA senior policy adviser during the Obama administration who now directs the left-leaning National Employment Law Project’s worker safety and health program, sharply criticized the Trump administration for what she called a failure to protect workers.
“If OSHA doesn’t act, workers are on their own — and in the 50-year history of the agency, there has never been an administration who so totally failed to enforce the law,” she told MarketWatch. “This administration has done everything they can to protect businesses from having to protect workers.”
Berkowitz cited earlier Labor Department numbers indicating that OSHA had closed a majority of more than 9,000 complaints about COVID-19-related safety violations without issuing citations, and called the citations that it had issued “barely a slap on the wrist.”
Some labor advocates have pilloried the fines slapped on two meat plants ($13,494 on Smithfield Foods and $15,615 on JBS Foods) over safety violations last month, arguing the penalties are a drop in the bucket for the multi-billion dollar companies.
A Smithfield spokesperson told MarketWatch its citation was “wholly without merit” and said the company would contest it, adding that the company had taken “extraordinary measures on our own initiative to keep our employees healthy and safe so that we could fulfill our obligation to the American people to protect and maintain the food supply. ” JBS, which did not immediately return a MarketWatch request for comment, has also called its citation “without merit” and said the company would contest it, the Washington Post reported .
In response to Berkowitz’s criticism, the Labor Department spokesperson said, “The claim that OSHA is not enforcing its standards and the OSH Act with respect to COVID-19 is patently false.”
“From Feb. 1 through Oct. 14, 2020, federal OSHA has received 10,691 complaints and referrals, of which 8,904 have been closed. Every single complaint has been investigated,” the spokesperson said. “There have been 1,106 federal OSHA inspections related to COVID-19. Those inspections have, so far, resulted in dozens of citations and hundreds of thousands of dollars in citations.”
A recent report by Berkowitz also found that OSHA had dismissed or closed 54% of COVID-19-related whistleblower retaliation complaints filed through Aug. 9, and resolved just 2% of complaints, noting that “of the tiny number of resolved complaints, it is unclear whether any were settled in a manner beneficial to the workers.”
“Not only are they [not] enforcing the law so employers would have to protect workers … once a worker raises concern and gets fired and gets retaliated against, the agency really doesn’t have their back,” Berkowitz said.
The Labor Department spokesperson said the agency had screened and closed 1,586 of the 3,181 whistleblower complaints filed between Feb. 18 and Oct. 14, and that it closed 65% to 70% of all whistleblower complaints on average “for various legal reasons.” COVID-19-related complaints “have been consistent with this average,” they said.
“OSHA is committed to conducting whistleblower investigations in a timely and efficient manner,” the spokesperson said. Those investigations related to COVID-19 have been conducted “consistent with how OSHA has conducted previous investigations, which traditionally are closed within nine months,” the spokesperson added.
Brantner and Berkowitz both suggested employees would largely need to fend for themselves in the absence of greater federal oversight.
“Instead of looking to the law, looking to government agencies, looking to the employers to solve, workers really may have to take this into their own hands,” Brantner said. “I wish there were more and better protections.”
Brantner suggested banding together with fellow employees who share the same concerns, then collectively expressing concern to the employer and offering potential solutions, which might include alternative scheduling, telecommuting, job sharing for people at higher risk for COVID-19 or social-distancing strategies for the workplace. Getting lots of coworkers on board and proactively bringing solutions to the boss has the greatest likelihood of success, she added.
“Usually I say it’s the employer’s obligation to provide a safe workplace — and it is — but I just don’t think that’s realistic advice right now,” Brantner said. “If an employer right now at this moment in time is not [working to protect employees], where have they been for the last eight months? … I don’t know that they’re suddenly going to wake up and solve this problem, if they haven’t figured it out already.”
Check with your relevant state and county agencies, Brantner said, where there might be resources that don’t exist nationally. Berkowitz encouraged workers to call their local health department about workplace safety violations and ask it to perform an inspection. “They have limited jurisdiction, if any, over worker safety — but they can put pressure on the company,” she said.
File a complaint through OSHA’s website and sign it, Berkowitz said; also consider notifying your county health department and local legislators. Union members can file a grievance, she added.
“I just think workers need to do what citizens need to do when things aren’t right — and that is, you just keep complaining,” Berkowitz said. “That’s all you can do.”