Calling an employment lawyer is likely intimidating to many people. That is never lost on me. You are likely calling because of a stressful situation at work. Often times, you want a single clear answer to questions like do I have a case? Yes or no. What can I recover out of it? Or, put another way, what is my case worth? Dave – tell me a number. As Pennsylvania employees return to work, the calls are many.
These questions, under ordinary times, are really hard to answer. Now, with the gradual relief from restrictions on working, and people being allowed to return to work, there is a lot of uncertainty. As society is reopening, employees are getting ready to return to work. In these uncertain times, there is much anxiety and even more questions.
This blog will address some of the more common questions that I am receiving.
How do I know my employer is complying with safety rules and laws?
The first thing you should do is educate yourself about employer’s safety requirements. There are different rules depending on where you work and your employer’s industry. The Pennsylvania Department and Heath and Governor Wolf’s office have many resources on their website. I recommend that you visit the site to education yourself.
Some of the things that your employer may be required to do include:
- Clean and disinfect
- Establish and implement a plan if there is a probable or confirmed case of COVID-19
- Limit the gathering of large groups and implement social distancing
- Provide cleaning supplies such as soap, hand sanitizer and disinfectant wipes
- Provide masks and make sure employees wear them
- Communicate policies and procedures
If your employer does not communicate policies and procedures, you should ask for them. Further, you should get them in writing. Upon returning to work, if your employer has not implemented required procedures and policies, you should ask that they correct any deficiencies. If they do not fix the problems, you may not be required to return to work. Thus, you may be eligible for unemployment benefits.
Do I have to return to work if I have an underlying health condition that puts me at risk?
As an employment lawyer, I don’t think there are many things more important to one’s life than their job, career, occupation, ability to earn an income. But without your health you cannot maximize your chances of success. So prioritization is necessary. My initial answer, generally, to this question is that you do not have to return to work if you have an underlying health condition that puts you at risk. But each situation is different, so that is not an answer to everyone’s question on this topic.
There are some general guidelines to follow that make sense to protect yourself and your rights. The first thing that you need to do is get a note from your doctor. The note should explain that you have an underlying heath condition that puts you at risk and you should not return to work. Take this note to your employer. Next, request an accommodation. If the accommodation is denied, you do not have to return to work. You may be eligible for unemployment benefits or you may have an employment law claim. Employers simply cannot let you go because you have an underlying health condition or if you are at an advanced age.
What if I live with somebody with an underlying health condition?
Generally speaking, this is the same answer as above. Employers should try to make accommodations.
Do I have to return to work because I am afraid of being exposed to the coronavirus?
This one is tricky. Science at this point suggests that having these fears are, or could be, legitimate. And I completely understand someone making the difficult decision not to return to work because of that fear. But the question legally requires a different answer. If you decide not to return to work because of a fear of COVID—19 – again, while it may be a rational fear based on science, in and of itself under the law your job is not protected and your employer could end your employment and/or replace you.
I do not have child-care, do I have to return to work?
Famous lawyer answer – “Yes and no.” The first thing you should do is ask your employer for an accommodation. However, they do not need to provide you with one. If they do not accommodate you, you can decide not to return and still be eligible for unemployment. However, before doing that, you may be eligible for paid sick leave under the Family and Medical Leave Act or FMLA.
The federal government expanded FMLA under the Families First Coronavirus Response Act or FFCRA. If you are eligible under FMLA and/or FFCRA, then your employer is required to allow you to miss work to care for a child.
These are just a few of the common questions I am being asked these days. Every situation is different, though, so please do not hesitate to reach out to us and we can listen to what happened to you, what situation you are faced with, and try to help you as you get ready to return to work.