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1.  Employers are Still Required to Protect Employee Health and Safety

The Occupational Safety & Health Administration (OSHA) recently released Publication 3990-03 2020, "Guidance on Preparing Workplaces for COVID-19", which provides guidance to employers on how to comply with existing workplace health and safety law (it does not create new legal obligations). 

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Under this guidance, depending on the circumstances of your workplace and the risk of exposure to COVID-19, employers may be required to take various steps in order to protect their workers, including promoting and providing training on hand-washing and other preventative measures, encouraging sick workers to remain home, imposing social distancing, improving ventilation and air filtration, and providing personal protective equipment ("PPE").  There are a number of factors that must be considered to determine what safety measures are appropriate for a particular workplace.  If you believe your employer is not taking appropriate steps to protect your health and safety, consider contacting an employment attorney or OSHA today.

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If you make a good faith complaint to your management or OSHA about a failure to fulfill their legal obligations to protect your health and safety, you should be protected from retaliation.  If you're disciplined, terminated, or threatened by your employer for escalating such health and safety concerns, consider contacting an employment attorney or OSHA today. 

 

Note that OSHA retaliation claims have particularly short deadlines - they must be filed within 30 days of the alleged unfavorable employment action occurs (i.e., whenever you learn of the retaliatory action).

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2.  "Non-Essential" Businesses Should not be Operating 

Many employees are expressing concerns that they are being put at risk by having to work in a business they believe is “non-essential.”  Although circumstances certainly vary, in many cases your only recourse is to report the business to appropriate authorities. 

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If you believe your employer is operating when it shouldn't be, please do not call 911.  Instead, to report a non-essential business that is operating despite Governor Pritzker’s shelter in place order, call 311 if you are in Chicago or your local village or police non-emergency number .  If you do make such a report, it is recommended that you take notes of the call and keep copies of any records you are provided as a result of making that call; these documents might help protect you against retaliation.

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Please note that the definition of what constitutes an “essential” business is very broad under the Governor’s Executive Order 20-10.  Do not assume that your employer is “non-essential” - it is probably wise to review the Executive Order, the Illinois Department of Commerce Guidance, and/or consult with an attorney before making a report.

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3.  Workplace Accommodations may be Available for High Risk Individuals

If you have a serious health condition that qualifies as a “disability” for purposes of the Americans with Disabilities Act and that condition elevates your risk of COVID-19, you may be eligible to seek a reasonable workplace accommodation. 

 

The appropriate accommodation will depend on the specific circumstances of your condition and workplace.  Examples of possible accommodations include work-from-home arrangements, assistive technologies, an isolated workspace, a temporary reassignment to an alternate position, special provision of PPE while at work, or a short period of paid or unpaid leave.  If you need such an accommodation, ask your management or HR as soon as practicable. 

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Once you’ve made a request for a reasonable accommodation, your employer must then engage you in a back-and-forth (the “interactive process”) to help decide whether an accommodation can be provided.  They must provide some accommodation – which may be a compromise from what you asked for – unless they can show it would impose “undue hardship.”  The employer likely will seek medical documentation as to your qualifying disability and need for accommodation, so be prepared to connect with your healthcare provider.  If you need assistance seeking an accommodation, call an employment lawyer immediately. 

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4.  Unpaid Protected Leave may be Available if You or a Loved One Contracts COVID-19 

If you contract COVID-19 or need to care for a loved one afflicted with COVID-19, you may qualify for protected, unpaid leave of up to twelve weeks under the Family and Medical Leave Act.  

 

The FMLA does not apply to all employers (they must employ 50 or more employees within a 75-mile radius of the worksite) and does not apply to employees who have worked for their employer for less than 12 months or for less than 1,250 hours in the 12 months preceding the leave.  

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5.  Employees who Engage in Concerted Activity may be Protected from Retaliation

Several reports have emerged of businesses terminating employees who were attempting to organize their co-workers to seek hazard pay, get badly needed protective equipment, or otherwise try to collectively improve their working conditions.  Concerted activity, by two or more non-management co-workers, to escalate concerns and to try to improve the terms and conditions of employment for themselves and their co-workers, is protected by Section 7 of the National Labor Relations Act.  If you have been disciplined or threatened with discipline for engaging in concerted activity, contact an employment lawyer (or the National Labor Relations Board) immediately.

 

6.  The Pandemic Cannot be used as an Excuse to Engage in Discrimination and Retaliation 

As I discussed in a recent blog post, disturbing reports of anti-Chinese (or anti-Asian) discrimination have been emerging.  If your managers are engaging in anti-Asian harassment or if your employer refuses to investigate and address complaints that your co-workers are engaging in anti-Asian behavior, then you should contact an employment lawyer (or the Illinois Department of Human Rights) immediately.

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In addition, employees have expressed concerns about employers using COVID-19-related layoffs and hours cuts as a pretext for discrimination or retaliation.  Employers cannot use the pandemic as a convenient excuse to single out people for less favorable treatment on the basis of their membership in a protected class (age, sex, religion, race, national origin, disability, etc.) or in retaliation for reporting discrimination or other serious, illegal activity by the employer.  If you believe you are being treated less favorably than other, similarly situated co-workers outside of your protected class, contact an employment lawyer (or the Illinois Department of Human Rights) right away.

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Important Notice: All claims are subject to statutes of limitations, which vary depending on the allegations.  If you believe you may have a legal claim against your employer, do not delay in seeking legal counsel.

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