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Employee Rights When Returning to Work

Legal issues in reopening businesses

Pate, Johnson & Church are experienced business and employment law attorneys who assist their clients with a variety of litigation matters and employment disputes. When important business and employment legal issues appear in the news, media will often contact Attorney Page Pate, who is recognized as a constitutional attorney and legal analyst, for his analysis and opinion. In this case, CNN contacted Page to discuss potential legal issues with U.S. businesses reopening in the midst of the COVID-19 pandemic.

CNN asks Page if there are any protections in place for an employee who may not want to go back to work because they feel that they will be unprotected. Page responds that “there are some protections that an employer is going to have to put into place to make sure that the workers feel safe, the customers feel safe. And those protections are normally something that comes from OSHA. OSHA develops guidelines for workplace safety. They do that all the time and it’s no different now. But the exact type of accommodations that an employer has to make, that’s still subject to some debate. OSHA has not come out with a specific set of guidelines, but they are looking to the CDC and the other agencies of the federal government to come up with something that’s reasonable so that they can protect the employees and their customers. And if they don’t follow those guidelines, then yes, the workers may have some rights.”

Regarding the subject of contact testing and tracing, Page is asked about constitutional issues with employees having to provide information to their employer about where they have been and who they have seen, in an attempt to prevent further spread of coronavirus. Page explains that “this is very different than from in the past. In the past, an employer could not ask a lot of those questions. Those are questions relating to privacy. And an employer could also not ask a lot of questions about an employee’s health, about their current condition. But that has now changed. The EEOC has specifically said that an employer can make inquiries before somebody comes back to work, to make sure the employee has not been sick, has not been around people who are sick, and the employer can also run tests. They can take temperature. They can require a doctor certification. So there are a lot of things in place now that an employer can do and can require an employee to go through before that person can come back to work.” Page further explains that if someone chooses not to get the vaccine when one is available, “employers now have the ability to simply say, “If you have not taken the test, if you are not shown to be either immune, or have received the vaccine, or have the proper antibodies you cannot come back to work.” The EEOC has allowed employers to now take that position.”

Lastly, Page is asked if a business can be liable if they reopen, are compliant with any reopening procedures required, and a person still contracts the virus at that business. He explains that most often, no, but “if it’s a worker, the Worker’s Compensation laws allow somebody who gets injured or sick at work to claim some amount of money, but you can’t sue your employer. Same for a customer. A customer comes into a store, they get ill, it’s going to be very difficult to tie that illness to that particular office, or building, or workplace. But if they employer does not follow those OSHA guidelines we talked about earlier, and they’re negligent, then there may be a cause of action that an employee can use to file a lawsuit against the employer.”

TRANSCRIPT:

Victor: Businesses across the country are starting to reopen, and there are a lot of legal questions. How can employers or how should they advise their workers to follow guidelines, keeping them and their customers as safe as possible? Also, could businesses face negligence lawsuits if someone gets sick or passes away? And what if I don’t want to go to work? Here with me now is criminal defense and constitutional attorney Page Pate. Page, welcome back.

Page: Good morning, Victor.

Victor: So let’s start here. From what we’ve heard from a lot of workers who say, “I just do not feel safe going back to work.” Are there any protections for an employee who does not want to go back because they don’t feel like they’ll be protected or they’re in some type of danger?

Page: Well, Victor, there are some protections that an employer is going to have to put into place to make sure that the workers feel safe, the customers feel safe. And those protections are normally something that comes from OSHA. OSHA develops guidelines for workplace safety. They do that all the time and it’s no different now. But the exact type of accommodations that an employer has to make, that’s still subject to some debate.

OSHA has not come out with a specific set of guidelines, but they are looking to the CDC and the other agencies of the federal government to come up with something that’s reasonable so that they can protect the employees and their customers. And if they don’t follow those guidelines, then yes, the workers may have some rights.

Victor: Okay. Let me ask you here. There’s some sticky constitutional issues in the testing and tracing. Can a person be required to disclose who they saw, where they were for the last two weeks, as they try to, you know, mitigate the coronavirus?

Page: Yeah, Victor, this is very different than from in the past. In the past, an employer could not ask a lot of those questions. Those are questions relating to privacy. And an employer could also not ask a lot of questions about an employee’s health, about their current condition. But that has now changed.

The EEOC has specifically said that an employer can make inquiries before somebody comes back to work, to make sure the employee has not been sick, has not been around people who are sick, and the employer can also run tests. They can take temperature. They can require a doctor certification. So there are a lot of things in place now that an employer can do and can require an employee to go through before that person can come back to work.

Victor: And that includes not allowing someone to go back to their normal workplace if, let’s say, they choose not to get the first round of whatever vaccine becomes available.

Page: That’s exactly right. Employers now have the ability to simply say, “If you have not taken the test, if you are not shown to be either immune, or have received the vaccine, or have the proper antibodies you cannot come back to work.” The EEOC has allowed employers to now take that position.

Victor: Hey, last one on this return to opening here. These are some of the mitigation measures that are required for businesses to open. Let’s say that I go through all of these things and someone still is…they contract the virus at my business. Am I liable?

Page: Usually, no. If it’s a worker, the Worker’s Compensation laws allow somebody who gets injured or sick at work to claim some amount of money, but you can’t sue your employer. Same for a customer. A customer comes into a store, they get ill, it’s going to be very difficult to tie that illness to that particular office, or building, or workplace. But if they employer does not follow those OSHA guidelines we talked about earlier, and they’re negligent, then there may be a cause of action that an employee can use to file a lawsuit against the employer.

Victor: And what we just showed there was specific to Georgia as businesses open over the weekend. Page Pate, always good to have the clarity. Thank you so much for being with us.

Page: Thank you, Victor.

Victor: All right. Christi.