This article was originally published on the California Employment Lawyers Association (CELA) blog on April 17, 2020 here.
This past week, nurses at UCLA’s Santa Monica Hospital protested publicly for not receiving adequate personal protective equipment (PPE). Similar protests have been popping up all around the country as front-line workers demand that employers take appropriate measures to keep them healthy and safe. Already, too many workers have needlessly and tragically lost their lives in the line of duty. While the COVID-19 pandemic has presented unique and significant challenges for employers to provide their employees with a safe workplace, they need to be doing more.
Common sense and compassion for people providing vital services should lead to companies doing everything they can to provide necessary protections for the safety of their employees during this unprecedented time. If the moral imperative is not enough, employers should know they have a legal obligation to do so.
California Labor Code Section 6401 states: “Every employer shall furnish and use safety devices and safeguards, … which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
Given what we know about the new coronavirus, providing masks, gloves, soap, and sanitizing products should be mandatory for employers whose employees have to come into contact with the public. Yet there are countless stories of front-line workers being denied these necessary precautions. In a recent Freedom of Information Act (FOIA) request by The Washington Post, the Occupational Safety and Health Administration reported there were over 3,000 coronavirus-related complaints filed from January through early April. That number does not even include all of the complaints filed with state agencies, like California’s Cal/OSHA, which is similarly inundated with employee complaints.
Besides health and safety equipment and protocols, what about employees, many in vulnerable positions based on health considerations and the virus threat, who request to work remotely?
Here, state law also offers some protection. If an employee has a disability that would make that employee more vulnerable to the virus and requests an accommodation to work at home, refusal to do so could violate California’s Fair Employment & Housing Act (FEHA). Similarly, if an employee lives with someone who has a disability that makes them more vulnerable to the virus, the employee should request an accommodation to work at home in order to minimize the risk to the person they live with. Refusal to grant the request could violate the FEHA because an employee who is “associated with” a person with a disability also has accommodation rights.
Importantly, an employer must also reimburse an employee for any expenses incurred by the employee to obtain necessary safety equipment or to otherwise keep themselves safe (yes, that protective equipment made from store bought swim goggles and trash bags is reimbursable). Even lodging costs may be reimbursable under state law if an employee is forced to self-isolate away from home because they live with someone who has the virus or is vulnerable to the virus.
If an employee requests safety equipment, safer working conditions or safety accommodations, including working at home, and the employer retaliates by terminating the employee, suspending them, or imposing another hardship, the employee may have legal recourse. Threats, intimidation or coercion to require any employee to take unreasonable safety risks, including the threat of termination, can constitute a violation of Civil Code § 52.1, which prohibits persons from interfering, or attempting to interfere, by threat, intimidation, or coercion, with the exercise or enjoyment of rights secured by the Constitution or laws of the United States or California. California Labor Code §§ 6310 and 6311 make it unlawful to retaliate because of safety or health complaints and protect employees who refuse to perform hazardous job duties. Health and Safety Code § 1278.5 also specifically prohibits retaliation against health care whistle-blowers.
The legal consequences of those protective measures make it even more imperative that companies adhere to their obligation to provide safe workplaces. For those employers that do not take that obligation seriously or, worse, retaliate against their employees, California law provides robust protection. If workers continue to face unsafe working conditions or retaliatory conduct, they should exercise their legal rights and consult with an employment lawyer.
In this new reality, we understand businesses are facing immense pressure, but they must remember – workers’ lives are at stake. Now is the time for businesses to rise up to the challenge and do everything reasonably necessary to protect their employees.
You may also want to read about California employment COVID wrongful death claims.
Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.
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