Are employers required to follow COVID-19 safety protocols?

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) requires employers provide a safe workplace. When it comes to COVID-19, the agency recommends the following:

• Use cloth face coverings when around coworkers and the general public
• Provide soap and running water or hand sanitizer for frequent hand cleaning
• Screen workers, possibly including temperatures when reporting to work

OSHA notes that the best way to keep workers safe depends on different factors. Employers should take the type of tasks performed at work, the potential for interacting with other people and the likelihood of contamination within the workplace into consideration. A hospital or clinic, for example, has a higher risk and will need more safety measures when compared to a warehouse or an outdoor work environment. It may be more appropriate for certain hospital employees to use N95 respirators or better while an individual working within a warehouse may find use of a cloth mask most appropriate.

State laws also apply. The California Department of Public Health requires employees have a written COVID-19 Prevention Plan. The plan should include information on how the employer will communicate with workers about COVID concerns. It should also address physical distancing, facial coverings, other forms personal protective equipment and engineering controls such as ventilation and cleaning and disinfecting procedures within the workplace.

What federal laws apply to workplace safety and COVID-19?

It is against the law for an employer to discriminate against an employee who files an official complaint. If an employee feels that they were demoted, fired, or otherwise treated poorly because they filed an official complaint related to COVID precautions and an unsafe work environment, they may have a claim under federal law.

Unfortunately, these types of situations are not uncommon. The Equal Employment Opportunity Commission (EEOC) reported that employees most frequently cited retaliation in their complaints about illegal discrimination within the workplace. Retaliation occurs when an employer punishes an employee after the employee files a complaint with the EEOC. The EEOC states there were 67,448 charges for retaliation in 2020. If you feel that you are the victim of this type of behavior, you are not alone.

Title I of the Americans with Disability Act (ADA) may also apply. This law applies to private employers with 15 or more employees and allows for accommodations if the employee has a health condition or disability. It is used on a case-by-case basis. Qualifying employees could use this law to support a request to work from home or in an area isolated from other workers.

Additional federal laws may also apply depending on the details of the situation.

What about state laws?

Federal laws are not the only option — California state law also requires employers provide a safe working environment. Those who feel their concerns are not addressed or that they are in an unsafe work environment can hold their employers accountable. Various legal theories, such as discrimination, could apply depending on the details of the situation.