My employer says I have to work during coronavirus. What are my rights?
There aren’t many legal protections for workers who have to report to work right now. But you still have some options.
The coronavirus pandemic has thrown millions of Pennsylvania workers into one of two extremes: Some are out of work indefinitely, while others have to report to work at a time when government officials have issued sweeping “stay at home” orders for everyone else.
If you’re one of the workers who has to report to work, here’s what you need to know about your rights.
TL;DR: There aren’t many legal protections for workers who have to report to work right now. Your best bet is to talk with your coworkers and together ask for safer working conditions. That way you’re protected under the National Labor Relations Act, which says workers can’t be retaliated against for collectively asking to improve their working conditions.
Still, those cases can drag on for months.
My employer is continuing to operate, but I don’t think it’s allowed to under the current rules. What can I do?
On March 19, Gov. Tom Wolf ordered the closure of all businesses that were not “life-sustaining.” Here’s a full list of the kinds of businesses that are allowed to stay open in Pennsylvania. The state police are enforcing the order. You can report a business by calling your local law enforcement agency’s nonemergency number, the state has said.
In Philadelphia, Mayor Jim Kenney has also ordered nonessential businesses to close. You can report a food establishment that is still open to the city’s Environmental Health Services at 215-685-7495. For all other businesses, call 311 (or 215-686-8686 if you don’t have a 215 area code), or email [email protected].
Community Legal Services also recommends calling the police district near your job.
» READ MORE: Unemployment benefits in Pa. during the coronavirus pandemic: How to apply and who is eligible
My employer says I have to come in to work, but I’m at a higher risk for coronavirus complications / live with someone who is high-risk / don’t feel safe going to work. What can I do?
You have a few options.
You can ask to work from home, if that’s possible for the kind of job you do.
You can use sick leave if you have it, though the Philadelphia sick leave law — recently extended to cover those affected by the public health crisis — allows workers to accrue only up to five days a year. And the newly passed federal sick leave law excludes most workers.
You can request leave under the Family and Medical Leave Act, which is mostly unpaid but was expanded to include some paid leave during the pandemic.
You can request accommodations under the Americans with Disabilities Act (ADA) but it will largely depend on if your health condition or risk factor is considered a disability. Diabetes, for example, is considered a disability, but being over 60 would likely not.
» READ MORE: Philadelphia extended its paid sick leave law to cover public health emergencies such as coronavirus
None of those work for me. Is there anything else I can do?
You could talk to your coworkers about their concerns and then ask your employer — whether it’s as a collective or as an individual — to change its work policies so that it’s safer on the job.
It’s important that you talk to your coworkers about their concerns, so that you are protected under the National Labor Relations Act, which states that people who join together with coworkers to improve working conditions cannot be retaliated against (for example, fired). The law should also protect individuals who are acting in the interest of their coworkers — that means that if an employee knows that coworkers are concerned about a lack of protective gear and chooses to email management about it, that employee should be protected, said Greg Greubel, a Philly labor attorney.
But getting a case through the National Labor Relations Board takes time, so if you were to be fired and the board decided in your favor, it could take months to get reinstated.
Nadia Hewka, a lawyer with Community Legal Services, says that if you’re afraid of retaliation, you could create a dummy email account to email your employer on behalf of you and your coworkers. But, she notes, there is power in having names — and many of them — attached to such an ask. More-public demands can also carry weight.
This the kind of thing that many groups of workers have been doing across the country, whether they’re union or non-union: In Detroit, unionized bus drivers went on a work stoppage and won better safety precautions, like protective equipment and more rigorous cleaning protocols. Meat processing factory workers, both union and non-union, have been walking out to protest safety conditions. Non-union grocery store workers at MOM’s Organic Market in Center City protested unsafe working conditions in early April.
Here are the guidelines for employers from the Centers for Disease Control and Prevention. Know that these are voluntary guidelines — not laws — and the Occupational Safety and Health Administration, the agency in charge of keeping workers safe on the job, has chosen not to enforce these guidelines as law.
» READ MORE: Mom’s Organic staffers protest in Philly, joining grocery workers’ call for coronavirus hazard pay
If I can’t come to an agreement with my employer about safe working conditions and I refuse to work, will my job be protected?
If you’re not part of a union, the short answer is no.
Union members generally have “just-cause” protection in their contracts, which means they can only be fired for “cause” and can challenge what they believe is an unfair firing.
But most employees in the U.S. are “at-will," which means that they can be fired for any reason at any time, except for on the basis of certain identity categories like age and race.
» HELP US REPORT: Are you a health care worker, medical provider, government worker, patient, frontline worker or other expert? We want to hear from you.
If you believe you were fired because of a disability that made you unable to work during the pandemic, that could be a violation of the ADA. But as noted before, it has to be a condition that is considered a “disability” under the ADA. You can file a complaint here. Keep in mind that these matters can take months, or longer, to resolve.
» READ MORE: 'Just cause': Philly passes a cutting-edge worker protection law for the parking industry
If I quit or get fired because I refused to work in unsafe conditions, can I apply for unemployment?
Yes. You must have tried to keep your job, though, which means that you need to bring up your concerns with your supervisor. Legal experts advise putting those concerns in writing.