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Breaking Down the Law: Coronavirus & The Workplace

The Coronavirus is affecting companies here in the Las Vegas valley. Several major conferences have cancelled their events over virus concerns, and we now have at least 2 confirmed cases of the virus locally. Yesterday, a Caesars employee was sent home from work for refusing to work without wearing latex gloves. No specifics were offered, but it was confirmed the employee did not work in a cleaning-related job, and that wearing latex gloves was prohibited for their job duties. With the potential spread of the virus, there are questions regarding what rights employees have when it comes to the coronavirus and their jobs. Here to discuss the issue is attorney Matt Hoffmann with Battle Born Injury Lawyers.

 1. Starting with the employee sent home for refusing to work without latex gloves - what rights to employees have if they want to wear gloves or maybe masks while working if their employers do not allow it?

- The decision really comes down to what the Center for Disease Control has stated about the best defense against the virus.  

- Basically, the CDC has said that the best preventative measure is frequent hand washing, not touching the face, and other common-sense practices.  - They have also made the statement that items like masks really don’t help to protect against infection.    

- They do, however, help prevent the spread of infection by those who are already sick.

- OSHA requires an employer to provide a safe working environment.

- But the CDC guidelines make it clear that masks and gloves are not the best way for healthy people to avoid infection.  

- So an employer is perfectly within their rights to refuse to let an employee wear latex gloves or masks at work.

- And in this case, with the Caesar’s employee, they were not working in a cleaning or maintenance job that required them to work with dangerous chemicals.  

- I’m guessing the employee was a dealer or maybe a server. But unless they themselves are sick, there is nothing wrong with the employer declining their request to work with gloves - or a mask for that matter.

2. What if someone is diagnosed with the Coronavirus and quarantined - could they lose their job?

- The short answer is “yes.” But every situation will be different.  

- If you are a member of a Union, the collective bargaining agreement will determine job protections, sick leave, and other options.  

- But any employee, whether a Union member or otherwise, can have their job protected under the Family and Medical Leave Act (FMLA). This is Federal law that prevents an employee from being terminated for missing work due to an injury or illness.     

- Have to have been at the job for year or more and have worked at least 1,250 hours the prior year (about 25 hours a week).     

- For FMLA, you have to get paperwork filed with your HR department that is signed off by a medical professional.

- But if you a non-union member with a part-time job or a full-time job where you’ve been there less than a year, you are an “at-will” employee, and there is nothing that prevents your employer from terminating you if you cannot perform your job duties, although you are entitled to get paid from any sick leave or paid time off you have accumulated.

3. What rights do employees have if a co-worker is sick and they fear getting sick themselves?

- This brings us back to OSHA.

- An employer has to provide a safe working environment for employees - that includes a working environment free from a high risk of becoming ill.  

- If an employer knows an employee is sick and potentially contagious, they owe a duty to all other employees to send the sick employee home until they are better or until they can provide a doctor’s note proving they are not contagious.  

- And if an employer refuses to send someone home who is obviously ill, and an employee fears for their own safety, then their job is protected under OSHA if they refuse to work due to the ill employee.

- Under OSHA, an employee’s right to refuse to work is protected if

(1) they have asked the employer to eliminate the danger and the employer failed to do so;

(2) the employee refused to work in “good faith,” meaning they had a genuine fear of imminent danger;

(3) a reasonable person would agree there is a real danger; and (4) there is not enough time to get the hazard corrected through a regular OSHSA inspection.  

- So in the situation of an obviously sick co-worker, an employee should report their concern to their employer, and if the employer refuses to send the sick employee home, an employee has a valid reason to refuse to work and their job should be protected under OSHA.  

- But, again, it has to be a situation where any reasonable person would fear for their own wellness because an employee is so obviously sick and contagious.