The COVID-19 pandemic has impacted every workplace in the United States and across the world. As a result, the rights of employees have never been more important. Employees have the unfettered right to work in a safe environment it that right has never before been more threatened. As we now transition to a gradual return to work, the question that is at the forefront of the minds of employees is how can this be done safely.
There is no cookie-cutter answer to the question of protecting vulnerable employees and minimizing risk. The path forward seems to depend on considering the unique vulnerabilities of specific groups of employees and the steps employers must take when requiring those employees to return to work. If an employer refuses to effectively minimize the risk posed to the at-risk segment of employees, a vulnerable employee is well within his/her right to refuse to physically return to the workplace and insist on an accommodation that allows that employee to continue to work remotely.
Offering a reasonable accommodation to individuals who have certain underlying medical conditions not only protects them, but it protects employees that are physically working from the office. One thing that we know about COVID-19 is that it has the potential to be fatal or more severe to individuals who are older, and/or who have underlying medical conditions, such as any respiratory condition like asthma, emphysema, COPD, or recent pneumonia or bronchitis. Such individuals have a dramatically increased risk of dying from COVID-19. Furthermore, individuals with compromised immune systems, whether caused by underlying medical conditions (such as diabetes) or recent or ongoing medical treatment such as chemotherapy, have a similar increased risk.
If an employer refuses to accommodate an older worker or a worker with an underlying medical condition that could make contracting COVID-19 lethal, there are federal, state, and city anti-discrimination laws that exist to address that sort of discriminatory conduct.
As offices begin to reopen, there are steps that employers must take to ensure that the risk of infection from COVID-19 is minimized. For example, employers must ensure that appropriate “social distancing” is maintained (i.e. at least six feet of distance at all times between co-workers) or that some type of barrier exists if that is not possible. Masks and other protective gear must be available and temperature screening is acceptable for employees when returning to work with the understanding that this should be done in confidence and with the privacy of all employees in mind.
Employees in this country have a right to work in a safe environment, with all known health and safety risks effectively minimized. The Occupation Health and Safety Act regulates these issues. Until this pandemic is eradicated with a vaccine or effective treatment options, no workplace with human interaction can eliminate the risk of COVID-19 transmission. Therefore, it is imperative that employers follow CDC guidelines and that employees fight for their rights to work safely. This includes accommodating our most vulnerable population who continue to want to work and make a contribution.