Lawyers Answer Legal Questions About Covid-19 in the Workplace (Part 2)
As some of the COVID-19 restrictions are being eased, and more employees are returning to the workforce, our lawyers are being asked questions about employees’ rights and responsibilities while working during the pandemic. In this two part article our Long Beach lawyers answer questions about what employers can, can’t and must do to keep their employees (and customers) safe, while trying to keep their doors open.
CLICK HERE for Part 1 of This Article
Can my employer monitor me when I’m working from home?
Some companies are using tracking software to monitor employees, and even accessing the cameras on our company employee laptops to ensure they are working while at home. This area of the law is not always clear cut – and can be controversial and even hotly contested.
To begin with, monitoring of employees is subject to the federal National Labor Relations Act. “Secret” monitoring is typically permissible in the investigation of suspected criminal activity. So monitoring may be allowed if the employee is committing a crime or fraud by side-stepping work duties for which they are being paid.
And, if the employer advises employees in advance of the steps that are being taken to monitor communication (e.g. email or voicemail), travel (e.g. GPS tracking on company vehicles), and/or productivity (e.g. software that tracks productivity) – then monitoring is also generally considered legal, subject to some restrictions.
In some cases statutory or constitutional rights regarding privacy have been imposed and upheld, preventing employers from “spying” on work-from-home employees. But this can be an arduous claim to prove. For now, employees are advised to behave as though their work communications and travels are being monitored, at last to some extent, by their employer.
Can I refuse to go back to work if I am working from home?
Generally, no. As long as the public health authorities have cleared the specific place of work for re-opening, an employer can require workers to return to work. One exception to this would be if the employee has an underlying medical condition – supported by documentation from a valid health care provider – stating that they required “accommodation” under the Americans with Disabilities Act. In this case, teleworking might be considered to be a reasonable accommodation of a disability.
The Families First Coronavirus Response Act (FFCRA) unfortunately expired at the end of 2020, which provided time off for COVID-19 related medical conditions and the need to care for others for COVID-19 related reasons. However, employers can choose to voluntarily provide FFCRA leave after January 1, 2021.
Does my employer have to provide me with protective equipment ?
Yes. The federal OSHA General Duty Clause mandates that businesses provide their workers with a workplace free from recognized hazards likely to cause death or serious physical harm — this includes injury from infectious diseases such as COVID-19. And the Cal/OSHA state plan has even more protective standards.
However, an employer’s obligations to provide PPE will vary from workplace to workplace depending on the work being performed, and the risk presented. And, an employer is only obliged to take the steps that are required by OSHA or an OSHA approved state plan, and not more. So, an employee cannot demand specific PPE that is not deemed appropriate for their level of exposure.
In other words, OSHA recognizes that there is a difference in protection needed for various different industries. For example, health care workers generally need a much higher level of protection than an office worker who has their own separate office.
Workers Rights – Covid-19
Keep in mind that, like everything else related to COVID-19, this is uncharted territory. So, the answers are not always clear cut. This intersection of employees’ personal rights, employers’ rights and responsibilities, public and personal safety laws, and working from home during the pandemic is complex and constantly changing.
Above all, our lawyers recommend open communication between employees and employers, so that both parties’ rights, responsibilities and expectations are clear. Employees who have any health or safety concerns regarding their workplace in regard to the COVID-19 pandemic – or anything else – are encouraged to file a report with Cal/OSHA as a first step, here: https://www.dir.ca.gov/dosh/Complaint.htm