As coronavirus continues to decimate Washington state businesses and the broader economy, it is also scrambling the traditional playbook for relations between employers and workers.
At companies that remain open as “essential” industries as well as those that have been temporarily shuttered, the relationship between management and the workforce is being dominated by dozens of new questions.
Can employees be required to work under conditions they personally regard as unsafe? Can an employee who wants to work from home be fired for refusing to come into the office? Can managers demand proof that an employee has underlying health conditions or other extenuating circumstances, such as a high-risk family member, before allowing an employee to work from home?
At temporarily closed businesses, should workers be asked to use vacation time or go on unemployment during a shutdown, while other companies are paying employees during their furloughs? At companies that have reduced operations, can an employer make a worker take on a new task, such as outside delivery?
Many workers say they have been reluctant to push back on such issues with management — in part out of fear of losing their jobs at a time of rising layoffs. Some say they are being told “if you do not come in, we will fire you and do whatever we can to make sure you don’t get unemployment,” said Dan Kalish, an employment-law attorney and partner at the Seattle firm HKM, who represents employees in workplace disputes and who is fielding many COVID-19-related inquiries.
Although those companies are the exception, Kalish said, workers “are very nervous.”
But that nervousness works both ways, say Kalish and other experts.
Even well-intended employers are coping not only with unprecedented economic and safety challenges, but a wave of new government regulations, directives and orders that changes almost daily. Companies are “still in the triage stage, trying to figure it out exactly,” said Michael Griffin, an employment-law attorney at the Seattle firm Jackson Lewis who works with employers. The crisis has created “a monumental task for management and HR to address all of those [regulatory questions] while also addressing the bigger picture, which is keeping people safe.”
The result: growing conflict between employees and employers over what employers are obligated to do, what they can require their workers to do, and what rights employees have. That tension is not only undermining “essential” operations active during the shutdown; it may also create problems when Washington tries to reopen its economy and companies try to persuade workers to come back.
Much of that tension centers on workplace safety, especially in companies where employees have tested positive for the disease, or where employees work closely with customers.
Federal and state law already require employers to “provide a safe and healthful workplace,” said Griffin, and since the outbreak, new policies have arrived almost weekly. The state Department of Labor and Industries, which oversees workplace safety, has ordered employers to treat COVID-19, the disease caused by the novel coronavirus, as a “workplace hazard” and take steps to protect employees. The U.S. Centers for Disease Control and Prevention has been updating its already extensive guidance for employers on the disease and now offers detailed guidance for disinfecting potentially contaminated workplaces.
But most of the guidance is exactly that — advice on best practices — with few specifics on enforcement. That’s partly because experts themselves still don’t fully understand the mechanics of coronavirus transmission.
There is broad agreement over basic measures, such as disinfecting surfaces, proper ventilation and allowing adequate time for hand-washing. But attempts to make rules for deeper cleaning measures are complicated by the uniqueness of each workplace and job description.
“Because each facility is so different, making a blanket order is going to be really hard to do,” said Marilyn Roberts, a microbiologist with the Department of Environmental and Occupational Health Sciences at the University of Washington.
And because most known transmission occurs between people, and not by touching contaminated surfaces, Roberts said, the larger challenge for employers is ensuring that a deep-cleaned facility isn’t simply reinfected by returning employees who are carrying the disease but not showing symptoms.
Those complexities have led to huge variations in how companies approach COVID-19 workplace risks, and a lot of anxiety among employees that their safety is being looked after. That’s especially the case at businesses that rely on warehouses, where employees may work in close quarters, or in grocery stores and other “essential” retailers, where workers deal with hundreds of customers a day.
At the local outlet of a big-box store, for example, workers said that managers were maintaining social distancing at checkout stands, but not in “the remainder of the store, where customers and employees are still crammed together,” one worker told The Times. Another worker, this one at a local laundering company, complained that drivers are expected to visit dozens of other businesses daily, “interacting with multiple people at each business … and then drive to next customer, and go inside and interact with more customers without … enough PPE [personal protective equipment] to protect ourselves.”
But it has also been a problem at some “essential” companies that have corporate operations, but which have been reluctant to allow employees to work from home.
One person who called The Times broke down in tears while describing a family member who was still being required to report to work in a massive office complex even as many other employers had embraced work-from-home policies. At a local construction firm, employees said supervisors were refusing to have all office staff work from home because no office employee had yet tested positive for COVID-19.
“I am worried that people are going to be required to come in until it’s too late,” wrote an associate of one of the employees in an email to The Times. Office workers were required to prove to supervisors that they needed to work at home, which effectively required them “to disclose health conditions, they have previously chosen to keep to themselves,” the email said.
Another major area of employee conflict: paid leave. Workers in Washington are already guaranteed paid leave under state law and some city laws — and they may also qualify for emergency paid-sick-leave benefits under recently enacted federal legislation, the Families First Coronavirus Response Act (FFCRA), which went into effect April 1 and has provisions for companies that shut down under government orders.
But there are still uncertainties over, for example, whether the new federal benefits apply to workers whose companies close due to a stay-at-home order, such as the one issued March 23 by Gov. Jay Inslee. Another unknown: whether workers with symptoms of COVID-19 (but no formal diagnosis) who self-quarantine can claim any paid leave.
One critical factor here, legal experts say, is that the legal framework around coronavirus is itself in flux.
The crisis has produced a huge number of new regulations or laws that have implications for business, but which have not been fully translated into detailed guidance or interpreted, as often happens, by years of court battles.
“We have none of that right now,” Kalish said, who notes that laws as established as the 1964 Civil Rights Act are still being interpreted in court more than half a century later. To try to interpret new pandemic law in a matter of weeks, he added, “is just incredibly challenging.”
But already, outlines of a new legal landscape are emerging as government agencies translate the voluminous regulations into specific guidance for employers. The state Employment Security Department offers a web page showing how various COVID-19 scenarios would be treated under the state’s leave, unemployment and industrial insurance laws.
Employment lawyers like Kalish and Griffin are also assessing whether new policies might change existing workplace protections. Kalish, for example, thinks workers are likely to gain leverage with their employers from new policies on issues such as social distance. For example, if a worker was fired for refusing to attend a meeting with 50 other people in a crowded conference room, the worker would likely be able to take the employer to court, Kalish said. Workers can’t be “terminated for following public policy,” Kalish said.
Legal experts also expect more clarity around paid leave and other pandemic-related benefits.
For example, while there are still questions over whether or when Inslee’s stay-at-home order will suffice to activate the emergency-leave provisions under the FFCRA, said Griffin, the recent order by Public Health – Seattle & King County on quarantine and isolation would trigger those benefits for individuals who were subject to the order.
In the meantime, experts recommend that employers err on the side of accommodating employee concerns.
“I would really encourage companies to go beyond the legal requirements,” said Kalish. “For crying out loud, if someone does have a relative who’s immunocompromised and it’s fine for the person to work from home, then even if the company’s not legally … required to offer it, they should freaking offer it.”
Experts also urge employees to keep in mind that many employers are under scrutiny, both internally and from regulators and the public, to improve their COVID-19 policies.
Some grocery stores, for example, are installing plexiglass shields for checkers. Amazon is now promising to test employees for fever and has taken other precautions thanks to heavy pressure by employees and lots of media attention. Costco, which initially refused to allow corporate staff to work from home, eventually reversed course after an employee backlash. Even workers who were bitter at management now admit the retailer seems to have learned from its mistakes.
“They realized how they were handling it probably wasn’t the best,” said a corporate campus employee who asked to remain anonymous. “I think they finally got the idea.”