Back to the office? The complaints and lawsuits are already trickling in
Can your boss make you return to the office mid-pandemic?
Can you refuse to be vaccinated and keep your job?
Can you sue if the colleague in the next cubicle won’t wear a mask?
As the COVID-19 pandemic abates in California, many employees who have worked from home for months will soon return to the office with no clear-cut answers on how to navigate coronavirus-related issues. Some are happy to go back. Others — not so much.
Companies are obligated by law to provide safe workplaces — a challenge as the virus continues to circulate, albeit at a lessening pace. With many white-collar workers still fearing exposure, labor lawyers predict a surge in complaints to workplace safety agencies and related lawsuits.
“We’ve not had anything like this pandemic in a hundred years,” said UC Berkeley law professor Catherine Fisk. “And employment laws were developed fairly recently when infectious diseases were not a major threat, other than the annual flu.”
Lawsuits over whether businesses are adequately protecting office workers from COVID-19 are beginning to hit the courts, following dozens that were filed over the last year by blue-collar warehouse and meatpacking employees who could not work from home.
Those suits are still working their way through the courts. And it is too soon to predict how case law will evolve to address the virus’ particular risks, Fisk said, given the complexity of labor laws.
There are a lot of barriers to employees suing their employer for failing to provide a safe workplace.
— Catherine Fisk, UC Berkeley professor of law
Managing the transition back to the office is likely to involve delicate negotiations. Getting people back to work side by side with colleagues is “going to be tough, just like it was tough getting us home,” attorney Jennifer Shaw said in a recent California Chamber of Commerce podcast. “I’ve been saying to employers, try to have empathy.”
In April, the U.S. Equal Employment Opportunity Commission gave employers the green light to require job-related vaccines. Many employers remain hesitant, however, until the U.S. Food and Drug Administration gives final approval to vaccines that are now being used under an emergency authorization.
Final approval is expected soon, but Fisk said employers may even now order most of their workers to be vaccinated, and fire them if they refuse. California’s Occupational Safety and Health Standards Board will consider a proposal Thursday to relax masking and physical distancing requirements in workplaces where all workers are vaccinated.
Some employers, including campuses across the University of California, have already adopted an employee vaccination mandate. Only workers who can prove that a disability should preclude vaccination, or those with “sincerely held religious beliefs” against vaccines, could be justified in claiming an exemption, legal experts say. But lawsuits probably will challenge government guidance as well as mandates by individual managers.
Fisk predicts most employers will conclude that a safe workplace requires a vaccinated staff to the fullest extent possible. Courts will consider not just a worker’s objection to vaccination but also “all the other employees’ interests in not being exposed to a highly transmissible disease,” she said.
A disability exemption would depend on scientific evidence of a vaccine’s harm, and a religious exception would be unlikely to succeed in court, based on earlier cases of workers who objected to working on Sabbath Saturdays, Fisk said.
Employers may face questions on what constitutes a bona fide religious objection. “Is it just somebody who says, ‘God spoke to me last night and told me not to get vaccinated’?” she asks.
Shaw, the California Chamber podcaster, said some of her clients want all their workers to be vaccinated, some “couldn’t care less,” and others are taking “an encouragement approach” and offering incentives.
That approach may not succeed with people opposed to vaccines. “If I have a political — or in my mind rational — view of why I wouldn’t get vaccinated, somebody giving me a Starbucks card is not going to change my mind,” she said.
A major issue in returning to offices is how employers treat workers with disabilities.
Under federal and state disability laws, companies are required to provide “reasonable” accommodation for disabled employees at their workplace. What’s reasonable in the case of the COVID-19 pandemic is open to dispute, but courts have ruled that employers must engage with workers to try to find a solution.
That doesn’t always happen. Cheri McKinzie, a 58-year-old marketing executive, says she was summarily fired after explaining to her bosses that she needed special accommodations at the office because she is at high risk of complications from COVID-19. McKinzie had lost most of her left lung during a bout with cancer seven years ago.
Her employer, Golden State Farm Credit in Chico, had closed its office in March of last year so staffers could work from home. That went well for McKinzie, who says she was able to perform all her duties remotely.
In June, when the company ordered employees back to the office, McKinzie asked for accommodations, such as a staggered work shift, an air purifier and a requirement for colleagues to wear masks at meetings. Instead of discussing her requests, she said in a lawsuit filed in Butte County Superior Court, the company laid her off.
“They simply terminated her,” said McKinzie’s attorney, John-Paul S. Deol.
Rob Faris, Golden State Farm Credit’s president and chief executive, did not respond to requests for comment.
“My doctor said I could end up on a ventilator,” said McKinzie, the sole provider for her 11-year-old son, who has autism. “I begged for my job. It was humiliating.”
She has had no luck in finding a new position and her son, she said, is having nightmares about their family becoming homeless.
On May 12, Judge Stephen Benson granted the company’s motion to refer the case to private arbitration, a closed-door proceeding that often favors employers. He ruled that McKinzie waived her right to a jury trial by signing an arbitration agreement when she was hired.
McKinzie said she was unaware that the document, part of a stack of papers that she briefly scanned, meant she could not sue “if the company violated discrimination laws.”
Forced arbitration, an increasingly common tactic in business conflicts, is likely to apply to most COVID-19-related employment lawsuits, lawyers say.
But many disputes won’t qualify for either a trial or arbitration.
Although lawsuits by disabled workers like McKinzie can be filed under disability discrimination laws, the safe workplace obligation under federal and state occupational safety statutes is generally enforced by California’s Division of Occupational Safety and Health, Cal/OSHA. Workers can file complaints with that agency. But by law only the agency, not the workers, can sue employers for violating Cal/OSHA regulations.
Several lawsuits have been filed under “public nuisance” statutes, but none have yet succeeded, since those laws normally apply to situations such as a polluting factory that threatens the health of a community, not a private workplace. “There are a lot of barriers to employees suing their employer for failing to provide a safe workplace,” said Fisk, the UC Berkeley law professor.
If workers contract COVID-19 on the job, employers are largely immune from litigation except in cases of gross negligence. In exchange for that immunity, complaints must be routed through the workers’ compensation system.
“Workers’ compensation is a no-fault system, where an employee who is injured or becomes ill at work has a right to have their medical bills paid, and some monetary compensation for lost wages or disability or even death,” Fisk said.
Last year, the California Legislature expanded workers’ compensation so that employees of businesses with more than five workers who contract the virus during an outbreak are presumed to have caught it at work unless companies offer proof to the contrary.
Some lawsuits have sought to carve out an exception to the workers’ comp system for family members seeking damages from businesses over relatives’ infections. But on May 10, a federal judge in San Francisco dismissed a case filed by a construction worker’s wife who was hospitalized after her husband brought home the virus.
The claim against Victory Woodworks, a Nevada company that allegedly transferred infected workers from another location to her husband’s job site, falls under the workers’ compensation system, the court ruled.