Rhode Island’s reopening is picking up speed.
The state is heading into phase three, which means more businesses are set to open and more people are going back to the workplace. With that comes nervous questions from employees about gray areas that have formed during the pandemic around the workplace and personal safety.
Providence Business News asked employment lawyers, human resources specialists and Rhode Island’s top labor official some questions workers might have about returning to their jobs.
Can I be forced to go back to work after being laid off if I am not ready? What if I or family members who live with me have a compromised immune system or underlying conditions? Employees unwilling or unable to return to work when recalled is becoming one of the most challenging issues that employers face.
Gregory Tumolo, an employment law attorney at Providence-based Duffy & Sweeney Ltd., said employers have the right to ask why individuals do not want to return to work, and if workers have quit or refuse to work without “good cause,” the employer can report it and unemployment benefits can be stopped. At that point, the unemployed worker will have to demonstrate a good cause for not working to resume benefits.
“Simply feeling nervous about going back into work would not be considered ‘good cause’ to continue collecting unemployment insurance,” said Scott R. Jensen, director of the R.I. Department of Labor and Training.
If the employee has a preexisting physical or mental disability, then that employee could qualify for leave under the Americans with Disabilities Act. And if an employee is under a quarantine order or providing COVID-19-related child care, that person would qualify for paid leave under the Families First Coronavirus Response Act.
However, medical documentation would have to be provided to the employer under both the ADA and FFCRA.
I’ve been working remotely, but my office is reopening to employees and my boss is expecting us back. I am not sick, but I feel uncomfortable about going back. Can I be forced to go back in when I can work from home? There is no clear-cut answer. According to lawyers and HR specialists, employees cannot demand to continue to work from home. Instead, it’s recommended that employees negotiate with their employer to come up with a compromise, maybe a hybrid arrangement of working from home certain days and in the office others.
Jensen noted that in phase two of Rhode Island’s economic reopening, working from home has been encouraged. “We urge employers to continue to be as flexible as possible,” he said.
If an employee has an anxiety disorder and can provide medical documentation, they might qualify for leave, or further but reasonable accommodations, under the ADA, according to Alicia Samolis, a law partner at the Providence firm Partridge Snow & Hahn LLP.
My employer is not following guidelines from the U.S. Centers for Disease Control and Prevention for a coronavirus-safe workplace. What should I do? “While there are good suggestions and good guidelines, they don’t necessarily create any legal obligation,” said Samolis. Instead, she recommended that employees read the R.I. Department of Health guidelines. If a Rhode Island company does not comply with state guidelines, it could be in violation of the state’s mandated reopening phases and could face fines.
And under the Occupational Safety and Health Act, if an employee believes that there is a real threat of death or serious physical harm, then they could refuse to work, Tumolo said.
Karyn Rhodes, a human resources specialist and vice president and director of Complete Payroll Solutions LLC, said businesses should closely follow state and CDC guidelines because if an infection occurs, noncompliance could potentially open the door to a lawsuit.
If there are specific concerns, DLT recommends contacting the R.I. Department of Business Regulation to ensure that health guidelines are being followed.
What if I’m uncomfortable with the accommodations my employer has made, even if they meet the CDC and state guidelines? Can I demand more changes or that I be moved to a safer spot in the workplace? “Employees are not in any position to demand anything from their employer,” Rhodes said.
If there are concerns, Rhodes recommended that employees contact their union representative or supervisor to diplomatically ask for changes, such as moving their desk further away from others.
I work in an environment where I interact with customers in person throughout the day. Can I refuse service if someone isn’t wearing a face mask? Yes, if you feel unsafe. James Hornstein, managing partner at Higgins, Cavanagh & Cooney LLP, said owners can make it company policy, then you can absolutely refuse service.
If your owner does not have a policy in place, Eric Cormier, Insperity manager of human resources services, said to deal with it diplomatically with the customer.
“Contact the customer and say, ‘In order to interact with us or do business with us, we would want you to follow the CDC guidelines and the guidelines we have in place for our employees,’ ” Cormier said.
Are there requirements that I receive sick pay if I get COVID-19? Yes. The Families First Coronavirus Response Act requires most employers to provide up to two weeks of paid sick leave for employees who contract COVID-19, according to Samolis and Tumolo.
Is my boss allowed to take my temperature before I enter the workplace? Yes, but Samolis said that is only under the current pandemic conditions. It could change when COVID-19 becomes less of a health issue. She said if there’s an employee who has a medical condition other than COVID-19 that results in them having a fever, they need to bring in documentation. They can still have their temperature checked, but the employer might have to let the employee work.
What other types of COVID-19 screening/tests can my employer perform, even if I object? Employers can require COVID-19 testing, antibody testing and ask you any question that is related to the virus. But employers can’t ask medical inquiries that don’t have a connection to the virus, according to Samolis.
Am I required to report any COVID-19 symptoms to my employer? Cormier said if an employee starts experiencing COVID-19 symptoms at work, they should absolutely notify their employer immediately, be sent home and get tested for the virus.
If that test is positive, fellow employees should be notified by the employer that someone in the workplace has COVID-19 without identifying the infected person because of privacy requirements.
Tumolo said if an employee starts experiencing COVID-19 symptoms while not at work, has been exposed to someone who is exhibiting symptoms or has tested positive, the employee should notify the employer by phone or email and should not report to work.
If I get COVID-19 while performing my job, am I eligible for workers’ compensation? Only if COVID-19 was contracted as a direct result of performing the job duties. Tumolo said front-line workers would likely qualify. For other categories of workers, a successful workers’ compensation claim is possible, depending on the situation.
“Workers’ compensation is no fault. This means that an employee claiming a work-related injury does not need to prove that the employer was negligent to recover,” said Tumolo. “Instead, the employee only needs to prove that the COVID-19 infection occurred at work and was proximately caused by work.”
Hornstein, who is in his law firm’s workers’ compensation practice group, said employees can be eligible for compensation if they demonstrate where the virus came from, such as from a co-worker.
What if I am injured while working remotely from home because of the pandemic? Am I eligible for workers’ compensation? Does it matter if I am choosing to work from home or required to work from home? Rhodes said it depends on what happened and where the injury occurred. She said that employees who are working remotely should be working in a safe environment, similar to what they would be working in if they were in the office.
“Depending on how, what, where and when, they may be eligible for workmen’s compensation,” said Rhodes. “It would not matter if the employee chose to work from home or if they were required to work from home. If they are working and are injured, [workers’] compensation may be an option.”
Tumolo said a work-related injury or illness is compensable regardless of the location.
“Courts have found that an employer’s lack of control over the conditions of an employee’s home-based work environment is irrelevant,” said Tumolo. “When an employee’s home is also their workplace, courts have found that injuries occurring at home during remote work are compensable.”
Alexa Gagosz is a PBN staff writer. Contact her at Gagosz@PBN.com.
