Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Mar 25 2020
As it appeared in the Hartford Courant
By KENNETH R. GOSSELIN
As jobless claims in Connecticut soar amid the intensifying spread of COVID-19, tens of thousands of workers are losing their jobs as businesses shutdown and the state’s economy comes up against a sudden, dramatic slowdown.
For those workers who still have their jobs but can’t work from their homes – manufacturing, warehousing and perhaps the most critical, health care, among them – questions have quickly surfaced about just what is to be expected from the employer – and their employees – to ensure as safe a work environment as possible.
“People are just going to have to make the best decisions that they can make for themselves given what we know about the public health issues,” Gregg D. Adler, a longtime employment law attorney in Hartford, said. “This is all unfolding so fast.”
Adler said the pandemic is tantamount to a “perfect storm” in employment law and regulation, with the consequences equally as severe for both businesses and their employees.
“From what I have seen, most employers who have the resources to act appropriately are trying to,” Adler said. “And those that don’t are just laying people off because it’s a lot of expense to comply. Unless your margins are high, it’s hard to do.”
Adler said he foresees a “ton of litigation about all of this on an individual and collective basis over time.”
But for now, The Courant asked Adler and other employment law experts about some of the most pressing questions involving issues when workers have no choice but to report to their workplaces.
The experts cautioned that each person’s situation can be slightly different and each needs to be taken on a “case-by-case” basis. The state – and the rest of the country – is in “uncharted waters,” they said.
Q: What if my employer cannot – or does not – allow for “social distancing?”
A: Nina Pirrotti, an employment law attorney in New Haven, said workers should talk to their bosses about potential solutions to create the recommended six-foot space between workers.
“And the employers should seriously consider them,” Pirrotti said. “If the employer rejects those solutions, she can go to unemployment and say, ‘I have left no stone unturned.’ The employer has not acknowledged them and to try to collaborate with me on this. I’ve had no choice but to leave.”
Pirrotti said, “In that scenario, I think unemployment is far more likely to grant unemployment benefits than a scenario where an employee just throws up her hands” and offers no constructive solutions.
That outcome isn’t perfect, however, because it doesn’t address employee concerns – and unemployment only pays 50% of what a worker earns.
Q: What if my employer does not provide sick time?
A: Mark Soycher, human resource counsel at the Connecticut Business and Industry Association in Hartford, an industry group, said unemployment compensation reviews are being more flexible in the pandemic.
“Someone who is being self-quarantined because of exposure, or monitoring their own health, or caring for a child whose school is closed and there is no paid off, I understand unemployment is being awarded to those individuals,” Soycher said.
Some companies also are allowing employees to draw against paid time off that would be earned in the future, Soycher said.
Federal legislation also provides funding for companies to provide time off with pay for workers that need to stay home, Soycher said, but that does not kick in until April 2. The funding comes with a tax credit for businesses, he said.
But bottom line, if you are not provided sick time as a condition of employment, you may not get it.
Q: If a co-worker tests positive, what should the protocol be? Do I have the right to know who it was? Should I be quarantined as well?
A. “An employee has the right to be safe,” Pirrotti said. “But that employee doesn’t necessarily have the right to know the identity of the person that is ill.”
Pirrotti said it is a careful balance that needs to be struck between laws that guarantee medical privacy and keeping co-workers safe.
“This reminds me of the AIDs crisis,” Adler said. “What happens when someone is HIV positive, but nobody knows it. This is like that.”
Adler said if an employer knows a worker has tested positively, “then they have the obligation to enforce the quarantine. If someone tries to go to work and they’re supposed by the quarantined, I think they can be fired.”
Q: What should a person do concerned they have no access to masks while working at a health care facility?
A: Kenneth C. Tucker, director of the Division of Occupational Safety and Health at the Connecticut labor department, said those health care employees working directly with COVID-19 patients clearly need to have respiratory protection. For those who do not come within the customary, six feet, it may depend, he said.
OSHA laws require employers to make these kinds of determinations — who needs to wear a mask and what kind and those who might not need one — and it must be part of a written plan. OSHA does not mandate these decisions, Tucker said.
“They have to determine which class of employees have the need for those N-95 masks versus, say another class of employees that may need a lower tier, say the surgical mask that are not N-95 approved but are going to provide a lower level of protection but some nonetheless,” Tucker said.
The determination may be made that some employees don’t need a mask at all, Tucker said.
Q: What precautions should employers be taking generally in the workplace during the pandemic?
A: The employer needs to respond to all the guidelines set down by the state Department of Public Health, the Centers for Disease Control and Prevention and the federal Occupational Safety and Health Administration.
Pirrotti said these include the distancing, if at all possible, six feet or more, the regular washing of hands and the regular sanitizing of work surfaces.
“It also means being responsive to individual workers because everyone, of course, is different,” Pirrotti said. “The 80-year-old worker is going to have different concerns than the 25-year-old worker.”
Q: If you quit your job because you don’t feel comfortable going in, are you still eligible for potential aid?
A: “If you really peel apart the law, if someone is just anxious about all of this, watching too much news, maybe reading too much stuff, and it is not in an environment that is considered high risk, other than being in the presence of co-workers they may not be eligible for unemployment if they just walk off the job,” Soycher said.
Again, the experts say, the employee must push for new and imaginative ways of instituting safe measures such as social distancing and to see whether the employer responds or not.
Q: Could a worker potentially file a worker compensation claim?
A: Sachin Pandya, a labor law expert at the UConn School of Law, said worker compensation claims are typically linked with a physical injury, say falling off a ladder.
But Pandya said the Connecticut Supreme Court has interpreted the state’s worker compensation statute to also cover a life-threatening virus. In 1997, there was a case in which a law enforcement officer came in contact with a suspect and was exposed to HIV.
“They obviously weren’t thinking of a pandemic,” Pandya said, and it could be difficult to prove that the exposure was a result of coming into the workplace.
Q: Where can I find more information?
A: The state labor department has a list of frequently asked questions at http://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF