By Megan Stringer, The Wichita Eagle, Original article link
As employees have been heading back to work in person, they saw no restrictions to prevent the spread of COVID-19 in Sedgwick County for more than a month. Even now that workers face mask mandates in both the city of Wichita and now the rest of Sedgwick County, many people continue in-person work as cases of the new coronavirus climb upward in Sedgwick County.
Whether you’ve been going to work throughout the pandemic or you’re back in the workplace after a few months of furlough or working from home, you might have questions about safety in the workplace.
What should you do if your coworker tests positive for COVID-19? Can you receive any pay if you’re self quarantining at home under the advice of health officials or your doctor?
In some cases, you might be eligible for two weeks of paid sick leave or up to 10 additional weeks of expanded family and medical leave under the FFRCA, or the Families First Coronavirus Response Act. If so, it’s key that you seek guidance from a health care provider, attorneys said.
The Eagle worked to find answers to some common questions you might have as many people begin returning to the workplace, whether you’re in an office, waiting tables or on the factory floor.
I’VE BEEN WORKING FROM HOME, BUT NOW MY EMPLOYER WANTS ME TO COME BACK TO WORK IN PERSON. DO I HAVE TO GO?
The short answer is yes.
If you have an underlying health condition that might put you at a higher risk of negative health outcomes due to COVID-19, you might have other options under the Americans with Disabilities Act. Jump to that question below for more information.
IF I CHOOSE NOT TO GO BACK TO WORK, CAN I CONTINUE TO COLLECT UNEMPLOYMENT BENEFITS?
Most likely, no, said Gaye Tibbets, an attorney practicing employment law with Hite, Fanning and Honeyman.
If you’re offered your job back, you probably will no longer qualify for unemployment. The Kansas Department of Labor says you’re not eligible for unemployment benefits if you refuse a job when offered or if you leave work voluntarily without good cause.
If you believe you have good cause, or the job you’re offered to return to is not the same job you had before, then the answer could change. However, those situations can be difficult to prove, too, Tibbets said.
MY COWORKER TESTED POSITIVE AND I HAD CONTACT WITH THEM. DO I STILL HAVE TO COME INTO WORK?
It depends. If you know for sure that you’ve been near someone who later tested positive for COVID-19, you can contact your local health department (such as the Sedgwick County Health Department) or your doctor. Tell them your situation and ask for further instruction.
If a public health official or your doctor believes that you’ve been in close contact with the virus and need to quarantine, they will tell you to do so.
And if you’re following the advice of those experts to stay home and quarantine, you’d likely be eligible for paid leave under the FFCRA, Tibbets said, as long as your employer qualifies.
If your doctor or health officials tell you that your level of contact does not pose a serious risk and you’re OK to continue working in person, you would likely have to do so, unless your employer instructs you otherwise.
If you’re unsure of your situation, the best thing you can do is contact the local health department or your doctor, said Sean McGivern, a Wichita attorney who works in employment law for Graybill and Hazlewood.
MY COWORKER TESTED POSITIVE, BUT I DON’T KNOW IF I’VE HAD CONTACT WITH THAT PERSON. DO I STILL HAVE TO COME INTO WORK?
The best option, Tibbets and McGivern said, is still to call your local health department or doctor. A health department can offer guidance as to your risk level and potential exposure, based on your circumstances.
HOW DO I KNOW IF I’M ELIGIBLE FOR PAID SICK LEAVE UNDER THE FFCRA?
The Families First Coronavirus Response Act requires some employers to provide workers with paid sick leave if they are unable to work, in person or remotely, due to quarantine orders.
Generally, you’re eligible for the paid leave if a health care provider has advised you to self quarantine, according to the U.S. Department of Labor.
You might also be eligible if you’re caring for someone who is self quarantining based on a health care provider’s advice, or if you’re caring for a child whose child care provider is closed or unavailable for reasons related to COVID-19.
However, the FFCRA only applies to private employers with fewer than 500 workers, as well as some public employers.
If your employer has 500 or more workers, you will not be eligible for paid leave under the FFCRA.
If you want to verify whether or not you’re eligible, you can use an online tool from the DOL at www.dol.gov/agencies/whd/ffcra/benefits-eligibility-webtool. The web tool will ask you a series of questions to determine your eligibility.
I WORK AS AN EMERGENCY RESPONDER OR HEALTH CARE PROVIDER. DO I STILL QUALIFY FOR THE PAID SICK LEAVE UNDER FFCRA?
No. Health care providers and emergency responders are excluded from the paid leave options under the FFCRA.
For more information about who is described by the DOL as a health care provider or emergency responder, visit www.dol.gov/agencies/whd/pandemic/ffcra-questions#56.
I KNOW I’M ELIGIBLE FOR PAID LEAVE UNDER THE FFCRA. HOW DO I APPLY FOR IT?
The federal government is meant to reimburse the paid leave through your employer, so you still request the leave through your employer.
To request the leave, you need to give your employer your name, the dates for which you’re requesting leave, the reason for your leave and a statement that you’re unable to work because of that reason.
If you’re requesting leave based on the advice of a health care provider advising you to quarantine, then you should provide the name of that health care provider, too.
You can find more information from the DOL online at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#16.
I HAVE AN UNDERLYING CONDITION THAT MAKES ME MORE VULNERABLE TO THE CORONAVIRUS IF I CONTRACT IT. DO I STILL HAVE TO GO BACK TO WORK IN PERSON?
In the case of an underlying health condition or disability that might make you more vulnerable to COVID-19, you can ask your employer for a reasonable accommodation under the Americans with Disabilities Act, said Tibbets.
For example, if you have a lung condition and you’ve been working from home since the pandemic hit Wichita, it might be reasonable for your employer to allow you to continue working from home instead of returning to the office.
If you think a reasonable accommodation under the ADA would apply to you, you should contact your doctor and ask for a note to provide your employer.
Some common underlying health conditions that might put you at a greater risk of harm due to COVID-19 include Type 2 diabetes, serious heart conditions or weakened immune system, according to the Centers for Disease Control and Prevention.
Any request for accommodations under the ADA could still be interpreted differently on a case-by-case basis, Tibbets said.
IS MY EMPLOYER REQUIRED TO FOLLOW ANY SAFETY GUIDELINES?
While there were no restrictions placed on any businesses in Sedgwick County previously, you are now required to wear a mask within Wichita city limits and elsewhere in Sedgwick County. Generally, both mask mandates apply to employees and customers within businesses. There are exemptions for children under the age of 5 and people with medical conditions that might prevent them from wearing a mask.
If you feel your employer is not following the mask mandates, the city of Wichita set up a hotline and email to report violations of its mask requirement. You can call the non-emergency line at 316-303-8255 or send an email to firstname.lastname@example.org.
There are also loose requirements in place at the federal level.
The Occupational Safety and Health Act of 1970 requires employers to provide “safe and healthful working conditions.” This means employers do owe their employees a reasonably safe workplace.
A general clause of that act requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
But what does a reasonably safe workplace mean? That question could have multiple answers coming from different parties. Tibbets said that OSHA guidance is not always enforced strictly.
A stronger case might be made if an employer has done absolutely nothing to prevent the spread of COVID-19, or not taken any recommended safety precautions, Tibbets said. If this is the case in your workplace, she recommends you file a complaint with OSHA.
HOW CAN I FILE A COMPLAINT WITH OSHA?
You can file a complaint about an unsafe workplace or an employer not following OSHA standards online at www.osha.gov/pls/osha7/eComplaintForm.html.
You can also call your local OSHA office to file a complaint. OSHA has a Wichita area office you can call at 316-269-6644.
You can mail a complaint form as well. Download or print the complaint form at www.osha.gov/oshforms/osha7.pdf, or send a letter describing your complaint. The form is also available in Spanish at www.osha.gov/oshforms/OSHA7_SPANISH.pdf.
The Wichita office is at 100 N. Broadway, Suite 470. Mail your complaint there, if you choose to do so.
You can also visit the office in person to discuss a complaint.
CAN I JUST TALK TO MY BOSS ABOUT MY CONCERNS?
Yes! You can always open a line of communication with your employer if you have specific worries about COVID-19 in the workplace. Some employers have been flexible throughout the COVID-19 pandemic.
However, if you are worried about being retaliated against for bringing up those concerns, then you might want to communicate with someone other than your employer too, said Tibbets. That could mean filing a complaint with OSHA.