Know Your Rights as You Return to Work

Northern Virginia and the D.C. Metro region are preparing to return to work, at least in stages. If you are an employee returning to the workplace, there are a number of COVID-19-related rights that you have.

 

First, under federal law and rules from the U.S. Dept. of Labor, Occupational Safety and Health Administration (OSHA), your employer must provide a “safe” workplace. I cannot give you a binding definition of “safe.” But if your employer does not enforce social distancing (people staying 6 feet apart) and is not cleaning high-touch surfaces, for example, you can file a claim with OSHA. Don’t hold your breath waiting for a positive outcome, but the option is available.

 

Second, if you are in an “essential industry”, such as health care, public safety, or construction, the workplace restrictions have generally not applied to you since the beginning and you likely won’t see many changes. Despite this, see the more detailed points below.

 

Third, if you are not in an “essential industry,” then you may be asked to return to work. If you are a high-risk person (over 60, respiratory or heart condition, immunocompromised), you may have the right under the Americans with Disabilities Act (“ADA”) to request a workplace accommodation. Reasonable accommodations could include telework, separation from other employees, mask use, etc. Non-high risk employees may be able to seek accommodations due to increased stress, anxiety, or other mental health related conditions that have been caused or exacerbated by the COVID-19 crisis. Your employer may require a doctor’s note to prove disability.

 

Fourth, regardless of whether you are “essential” or not, you have certain rights to paid or unpaid medical leave under federal law. The Family and Medical Leave Act (“FMLA”) provides for up to 12 weeks of unpaid leave to care for yourself or a family member, as long as your employer has 50 or more employees and you have worked there at least one year. Under the Family First Coronavirus Response Act (“FFCRA”), employees working for employers with less than 500 employees have the right to two weeks of paid sick leave if they are under a quarantine or doctor’s order to stay home, have COVID-19 symptoms, or are caring for a quarantined family member. An employee is entitled to ten (10) weeks of leave at 2/3 pay if caring for a child because the school or daycare are closed. A small employer can seek an exemption if paying the leave will endanger the “viability” of the business (unclear). In all cases, the paid wages are capped at various amounts.

 

Lastly, Governor Northam recently signed several employment related bills into law which go into effect on July 1, 2020. These laws include the Virginia Values Act, whistleblower protection and wage theft protection which will revolutionize the kinds of claims that employees may now bring against employers in Virginia.