Buzz
It seems no one informed the coronavirus, yet the pandemic appears to be over. While lockdowns are loosening and many of us are returning to the office—if we haven’t been there already—rising COVID-19 cases and a lack of appetite for another shutdown may leave you questioning your employer’s legal duty to report COVID-19 cases within its workforce.
Like many aspects of pandemic life, this matter is complex. Although federal protections are limited, some state-level exceptions exist to help employees know if they were exposed to COVID-19 at work. Employers aren't federally required to report cases to the CDC, but certain state laws might differ. Additionally, workers maintain the right to a safe working environment and the ability to organize if they feel unsafe.
Federal Guidelines for Reporting to the CDC
“At present, no federal law requires employers to report Covid-19 cases in the workplace,” stated Nandini Sane, a lawyer at Cozen O’Connor, in an email to Mytour. “Such mandatory reporting obligations are generally handled at the state and local levels and differ across jurisdictions.”
These exceptions are uncommon, and without thorough research or legal expertise, it can be challenging to determine whether they apply to your company or situation. In California, for instance, employers must record a COVID-19 case if it’s work-related and leads to death, time off work, job restrictions, reassignment, medical care beyond basic first aid, unconsciousness, or a significant injury or illness diagnosed by a physician or licensed health professional.
Employees are entitled to report workplace hazards
While notifying the CDC about a COVID-19 case is one thing, informing others—like colleagues who may have been exposed—is another. The CDC advises employers to notify employees of potential COVID-19 exposure while still respecting the confidentiality requirements outlined by the Americans with Disabilities Act.
“Employees are entitled to report workplace hazards, including COVID, to OSHA, state or local health authorities, the media, an attorney, or colleagues without fear of retaliation,” stated Amal Bouhabib, an attorney at Southern Migrant Legal Services, which offers free legal services to farmworkers in southern states, in an email to Mytour. As Bouhabib pointed out, employers are legally obligated to provide a safe working environment for their employees.
Employees generally have the right to be informed about known hazards in their workplace, which includes being alerted to any potential risk of exposure to the coronavirus. However, as Bouhabib emphasizes, this right stems from OSHA's existing regulations, and their COVID-19 guidelines are merely suggestions, not mandatory requirements. These rights can only be enforced through filing a complaint with OSHA.
Workers possess the right to unionize and organize.
If workers are worried that their employer is failing to take adequate safety measures, they hold the general right to organize, which is safeguarded by the National Labor Relations Act.
Bouhabib highlights that workers are protected from retaliation in various scenarios, such as when they raise concerns about unsafe working conditions, whether with a colleague or on behalf of others; if workers discuss unsafe conditions among themselves; if they initiate a petition for workplace changes; if they report issues to the media or government agencies; or if they form a union to address COVID-19 concerns. It's important to note that these protections do not cover farmworkers, government employees, domestic workers, supervisors, or independent contractors.
"I would be failing in my duty if I didn’t point out that, despite the illegality of retaliation under the NLRA and OSHA, we all know it still occurs," Bouhabib said. "Another way to protect yourself at work is to keep records of your complaints and your employer's responses, if possible and safe to do so."
This includes making all requests in writing and documenting your observations with detail. Another approach could be recording conversations or capturing photos or videos of any violations, though Bouhabib advises consulting with a lawyer first to determine if such actions are permissible in your state.
With the increase in cases and ongoing re-openings, it’s crucial now more than ever to be aware if you may have been exposed to the coronavirus. And when that exposure happens in the workplace, it’s essential to understand what the law demands and what steps you can take to protect yourself as much as possible when you return to the office.
