Returning to Work After Coronavirus Shelter In Place Order Is Lifted
- the degree of risk involved to your health, safety, and morals,
- your physical fitness and prior training, experience and prior earnings,
- the length of unemployment and your prospects for securing local work in your customary occupation, and
- the distance of the available work from your residence.
1. If I am returning to work, what is my employer required to do to keep me safe?
Cal OSHA, along with the California Department of Public Health (CDPH) have issued state guidance by job industry, and check lists for businesses preparing to open up their workplaces. These guidelines include screening measures, cleaning and disinfecting protocols, and social distancing guidelines. Businesses are required to adhere to all Cal/OSHA standards, as well as adhere to the guidance issued by the Centers for Disease Control and Prevention (CDC) and the CDPH. Click here for the California Department of Public Health’s guidance for businesses to reopen.
The California Occupational Safety and Health Act gives workers the right to file a confidential complaint about a workplace health and safety. Click here for more information about Cal/OSHA’s Enforcement Branch.
2. Can my employer require that I get tested for Covid-19, take my temperature before work, or ask me if I have symptoms linked to Coronavirus?
According to the U.S. Equal Employment Opportunity Commission (EEOC), an employer may administer a COVID-19 test (viral test) to see if you have an active case of COVID-19 before allowing you to enter your workplace. However, employers may not require antibody testing. Under state and federal laws, if your employer requires you to get the viral test to detect active cases of COVID-19, your employer must compensate you for the time you spend waiting for and undergoing the mandatory test.
Usually, it is illegal for an employer to measure your body temperature. However, the EEOC has issued guidance allowing employers to take employees’ temperatures to try and prevent the spread of the coronavirus. During a pandemic, all ADA-covered employers may ask their employees if they are experiencing symptoms consistent with the pandemic virus. For a summary of the EEOC’s guidance, please visit their website here.
3. Can my employer prevent me from wearing PPE while I am at work or is my employer required to supply me with a face mask, respirator, or any personal protective equipment (PPE)?
OSHA standards require employers to determine whether personal protective equipment (PPE) is required for specific job duties, to provide the PPE at no cost to the employee, and to train the employee on how to use the equipment properly.
The employer may provide respirators by employee request or permit employees to use their own respirators, but only if the employer determines “that such respirator use will not in itself create a hazard.” If the employer determines that PPE is not required, the CDC strongly suggests wearing a cloth face mask in public, particularly in areas of high community transmission. The CDC made clear that the recommended cloth face coverings are not surgical masks or N-95 respirators. The cloth face coverings are not subject to OSHA’s respiratory protection standard. For more information about the use of PPE in the workplace, click here.
For employees with a disability that need a reasonable accommodation for PPE usage, your employer is responsible for providing the accommodation unless it creates an undue hardship for the employer.
Cal OSHA has issued guidance that most California employers must implement an Injury and Illness Prevention Program (IIPP) to protect employees from workplace hazards, including providing employees with cloth face masks or encouraging their employees to use their own face coverings while at work. For more information on Cal OSHA’s guidance, click here.
4. If a vaccine becomes available for coronavirus, can my employer force me to get it?
An employer with a mandatory vaccination policy must comply with the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act. Under the ADA, if you have a disability or medical condition that prevents you from taking the COVID-19 vaccine, then your employer must provide a “reasonable accommodation” or exempt you from the vaccination requirements altogether. If that is not possible, you can be blocked from coming to work but cannot “automatically” be terminated. To comply with the ADA, a mandatory vaccination policy must be job-related, consistent with business necessity or justified by a direct threat, and no more intrusive than necessary. For this reason, health care providers, schools, nursing homes, and other employers that work in high-risk environments may require employees to take the COVID-19 vaccine.
Under Title VII, if you notify your employer of your sincerely held religious belief or practice that prevents you from taking the vaccine, then your employer must provide a reasonable accommodation and cannot require vaccination.
The ADA and Title VII are subject to your employer claiming an undue hardship, in which case your employer need not provide a reasonable accommodation and could require you to take the vaccine.
5. When employees return to work, do disability laws allow employers to require a doctor's note certifying fitness for duty?
Yes. Such inquiries are permitted, either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
For more information, see the EEOC’s guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
6. I was laid off due to Coronavirus and am looking for work. Do I have to disclose my disability in an application or interview?
No. Employers cannot ask any disability related questions or conduct any medical examinations before making a conditional offer of employment. After the employer has made a conditional offer of employment, they may make inquiries or demand a medical examination, so long as all applicants within the same job category are subject to these same requirements and the inquiry or medical examination is related and necessary for the job.
7. If I am nervous about returning to work for fear of contracting coronavirus, can my employer fire me? Am I still eligible to receive unemployment benefits?
If your employer requires that you return to work and you refuse to return, your employer may terminate your employment, unless you can show that there is a health risk or imminent danger of returning to work. According to the Occupational Safety and Health Act (OSHA), any employee who believes their employer is violating health or safety standards that may result in physical harm may request an inspection. If your employer is not taking proactive steps like promoting social distancing, frequent hand-washing and providing alcohol-based hand sanitizers, encouraging employees to stay home if they are sick, and maintaining regular cleaning and disinfecting surfaces, then you are likely covered under this Act. Click here for more information about OSHA’s guidance for preparing workplaces for Covid-19.
Additionally, if you feel your workplace posed a health or safety risk to all of its employees, the National Labor Relations Act gives workers the job protected right to participate in “concerted activity for the purpose of mutual aid or protection,” regardless of whether the workers belong to a union. If you are fired for protesting unsafe work conditions, you can file a complaint with the National Labor Relations Board. Click here for more information on these protections.
If you refuse to return to work and you are not covered under disability laws or OSHA, you would likely lose access to unemployment benefits, unless you can show “good cause” for why you refuse to return to work. Click here for more information on collecting unemployment from California’s Employment Development Department.
8. Can I turn down employment and still receive unemployment benefits?
It depends on the job you were offered and your circumstances. When you are unemployed, and you have been offered work, you cannot continue to collect unemployment insurance unless:
(a) the job is “not suitable”;
(b) the job is suitable, but you have a good cause for refusing to accept the job; or
(c) the employer did not give you sufficient information about the job to assess whether or not the job would be suitable.
Suitable employment is defined as work in your usual occupation or for which you are reasonably fitted. To determine whether work is suitable, the Employment Development Department considers whether a reasonably prudent person in your circumstances would accept the job, and should consider:
For example, if you have been offered a job at a company that has not put in proper safety protocols to keep its workers safe, or the job you have been offered is not a job that fits your training and experience, then that job is likely not suitable. Some work is never considered suitable, including work at an employer that doesn’t have workers’ compensation coverage, or work at an employer that does not possess necessary state licenses. A job is also not suitable if the job conditions, hours or wages are substantially less favorable than the prevailing standards for that job.
If you believe that you were wrongfully denied unemployment benefits after you declined to work an unsuitable job or declined a job with good cause, you should appeal your decision. If you need help filing an appeal with the California Unemployment Insurance Appeals Board and you meet our income guidelines, you may qualify for one of our virtual clinics. Please click here for information about our weekly clinics, including income guidelines and additional resources.
9. If I was furloughed by my employer, but have now been called back to work, how do I inform EDD of my current work status? If I have only been called back on a part-time basis, can I still continue collecting unemployment?
Depending on your earnings, you may still be eligible to receive unemployment once you return to work. The wages you earn minus $25 or 25%, whichever is more, must be less that what you would earn on unemployment. As long as you continue to meet the other eligibility requirements, you are entitled to receive the difference.
You should inform the EDD of your earnings when you certify your benefits on Question 6 of the Continued Claim Form. The EDD has provided several helpful YouTube video tutorials regarding how to certify for continued unemployment benefits.
10. Can my employer prohibit me from traveling to a non-restricted area during my personal time?
On March 19, the U.S. Department of State issued a Level 4 “Do Not Travel” advisory warning U.S. citizens to avoid all international travel due to the global impact of COVID-19. The U.S., Mexico, and Canada have also suspended all non-essential travel between the two countries. However, your employer generally cannot prohibit otherwise legal activity, such as an employee traveling abroad. While a federal court of appeals recently held that it is not necessarily a violation of the ADA to terminate an employee who refuses to cancel personal travel to an area of the world with a high risk of exposure to a deadly disease, your employer risks legal exposure, reduced employee morale, and negative publicity if they do so. This includes pregnant employees or those with medical conditions. However, employers may educate their employees before they engage in travel to risky environments to try and work out a solution, and employers can, and should, monitor those employees returning from such travel for signs of illness.