Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you've become an expendable number at work. There are robust laws that may protect you, but unlike the company, you've not been drilled on how to wield them. You're playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you've been targeted at work. Knowledge is power, let's get started.
Robert Ingalls: 00:45 The Coronavirus, COVID-19. It seems to be all that anyone can talk about right now. Fist bumps are replacing handshakes and head nods are standing in for hugs. A downside of this increased attention from the media and the public has been rampant speculation and misinformation. From massive sporting event cancellations, think about the NCAA Tournament, the NBA season, to international conferences, south by Southwest got canceled, to schools and universities. If you're listening to this podcast, you're probably wondering how all of this affects your job, your source of income. What are your rights and responsibilities?
Robert Ingalls: 01:22 Now, despite all of these rampant concerns, attorney Josh Van Kampen and I have decided to huddle up in a room together. How are you Josh?
Josh Van Kampen: 01:30 I am doing well, how about yourself?
Robert Ingalls: 01:31 I am lovely. Thanks for having me here today to talk about this. This is a timely episode. So let's jump in. When it comes to my employment, can my employer require me to report to work during an epidemic? Because I know people are really freaking out right now. They're concerned, what if other people have it? I think as of this morning, I saw that it's in our local area now, and people are concerned. So if I don't have Coronavirus myself, can an employer require me to report to work during this epidemic?
Josh Van Kampen: 02:01 And right off the bat, we're trying to answer these questions with an understanding though that the laws that are in place are more of a patchwork sort of situation. So there is no statute that specifically addresses the Coronavirus. And really we're drawing parallels, for example, to the flu. Influenza virus is something that's a parallel, but really it isn't. Nonetheless, we're going to try to give as concrete an answer as we can to folks today.
Josh Van Kampen: 02:32 So I think what you were asking about is a situation where the employee doesn't have Coronavirus but is concerned that they may contract that virus at work. So there's a law called the Occupational Safety Health Administration Act and that law does allow employees to refuse to report to work if they have a reasonable belief that a risk of imminent death or serious injury is present. So that's the operative legal test, is risk of imminent death or serious injury. So here, this is a big deal. So certainly, if there is some factual basis within your own workplace, where there was somebody who has contracted the virus, who was at work for example or maybe you're in a workplace where there are a lot of people that are flying in and out, especially from hotspots. Italy, at least while we're recording this podcast, that would be Italy, for example.
Robert Ingalls: 03:28 Sure.
Josh Van Kampen: 03:28 Is a hotspot or Seattle or anywhere in China.
Robert Ingalls: 03:31 So I mean, the first thing I think of is airport workers.
Josh Van Kampen: 03:34 Right.
Robert Ingalls: 03:34 They're right in the middle of it.
Josh Van Kampen: 03:36 Well and that's the thing. But the flip side of that too is that the airlines and the administrators at these airports, they also need people to come to work too, so that's certainly a dicier sort of call.
Robert Ingalls: 03:49 Sure.
Josh Van Kampen: 03:49 But in a general workplace, if there isn't a particularized threat with respect to the Coronavirus, then I think an employee would be putting their job at risk by refusing to report to work.
Robert Ingalls: 04:02 So does it matter if the president or the governor has decided that there's a state of emergency? How does that factor in?
Josh Van Kampen: 04:10 Governor Cooper in North Carolina has declared a state of emergency, but he hasn't issued any pronouncements about reporting to work. But let's assume that the governor himself has now said that employees are encouraged to work from home. And let's say that the outbreak becomes way more serious than it is as of this recording, I think that can shift the analysis. So pay close attention to what the government is saying about, not only recommending, but maybe even requiring with respect to attendance at work. And certainly if you're following whatever direction you're getting from the government about not reporting to work, then you should be fine in not reporting.
Robert Ingalls: 04:51 Sure. So let's say that I am exhibiting symptoms of the Coronavirus. Can my employer send me home then? Because I know that has to get dicey because from what I understand, the symptoms tend to emerge almost like the common cold.
Josh Van Kampen: 05:05 Yeah. Well in that sort of situation, so there's a law called the Americans with Disabilities Act. And unfortunately, the ADA, it doesn't apply to temporary conditions. So the Coronavirus or COVID-19 is a temporary condition. And so it's probably not covered by the Americans with Disabilities Act. Normally the ADA protects employees from forced testing or medical related inquiries. We're in a little bit of a gray area about what restrictions there are on what actions an employer can take toward an employee because the ADA may or may not apply. But can they send you home if you're exhibiting symptoms? I think probably, yeah.
Robert Ingalls: 05:54 Now in general, could they send you home if you were exhibiting symptoms of just what appeared to be a cold on any other given day?
Josh Van Kampen: 06:00 Well, no. No they couldn't. And that's the thing where we're in this kind of gray area or wild west arena when it comes to what employment protections are in place with something like this, because at least in terms of modern times, the scope of this is unprecedented. So we're not quite sure how it's going to be treated, but I think an employer would be within their rights to send home a worker who is exhibiting symptoms. Not indefinitely, you certainly can't be fired because you're exhibiting symptoms. And as of right now, the incubation period for this disease is 14 days. So I think that would be a reasonable time for an employer to be holding out an employee.
Robert Ingalls: 06:42 Now if they hold me out, is that something I can expect to be paid for?
Josh Van Kampen: 06:46 There's no law on that. But I would certainly encourage listeners to say, "Look, I don't think I have this. I feel like you're penalizing me based on this perception. I've got a family to support. I'll comply with what you're asking me, but I need to be paid for being home during this incubation period. Furthermore, I'll happily work from home. Just give me some tasks to do. I don't want to sit on the couch and just collect a paycheck. Give me something to do."
Robert Ingalls: 07:11 Right. So I'm going to ask you to look into your crystal ball here. You keep saying that there's really not a lot of legislation around this yet. Do you think that that's something we're going to see over the next year or two?
Josh Van Kampen: 07:21 Well, yeah. I mean there's definitely a void. And of course everybody's... The legislature and the executive branch are preoccupied just with containing this thing right now. But it's definitely exposed this gray area where even management side lawyers or defending companies or plaintiffs, lawyers like me are trying to figure out what the law requires or allows. And like you said, we're having to use a crystal ball and that's never a good way to advise the public.
Robert Ingalls: 07:48 Sure. So there has been a lot of information in the media on who has it, where these people are located. If my employer finds out that I was perhaps exposed to someone with Coronavirus, is that a situation where they could send me home or prevent me from coming to work?
Josh Van Kampen: 08:06 So let's say you were just in Seattle for a business trip and now you're wanting to come back and the employer is saying, "Well, we don't want you back until you're tested." I don't think that they can actually require you to take a test if you're not symptomatic, because the taking of a Coronavirus test is basically almost like a medical inquiry. And the Americans with Disabilities Act prohibits employers from requiring medical inquiries in most circumstances. Even if you're not disabled, there's just a prohibition on requiring medical examinations in general. So I think on that one, if you just happened to come in from a particular region they're concerned about, I don't think that they can mandate that or prevent you from working. Totally different story if you're exhibiting symptoms.
Robert Ingalls: 08:55 Gotcha. Now with the paranoia that is being exhibited in a lot of corners right now, let's say that my employer came to me and wanted to take my temperature at work. What are your feelings on that?
Josh Van Kampen: 09:07 Well so that one's an easy no, because the taking of the temperature, like I said, is a prohibited inquiry under the Americans with Disabilities Act. I'd once again, if you're exhibiting symptoms and you're coughing and sweating at work, well first of all, you should say yes. Because maybe you do have a fever and you should go to the doctor. But absent that, no, they can't run around and take everybody's temperature in the cubicles.
Robert Ingalls: 09:31 Yeah. In my mind, I have that picture of the old school thermometer with the mercury in it, going and putting it under everyone's tongue.
Josh Van Kampen: 09:40 It's definitely not lawful to do it the other way.
Robert Ingalls: 09:46 So am I protected from taking a medical leave if I have Coronavirus?
Josh Van Kampen: 09:51 So on that one, the answer is it depends. So like we talked about before, the Americans with Disabilities Act doesn't help because it doesn't cover temporary conditions. But there's another law called the Family Medical Leave Act that has a looser definition for what people are protected. And for the FMLA, the standard is a serious health condition, which is a lot easier to satisfy. I would be confident in telling our listeners that COVID-19 would qualify as a serious health condition, but not everybody's covered by the FMLA. So to be covered by the FMLA, the employer has to have more than 50 employees within a 75 mile radius of wherever you work. Also, you need to have worked for that employer for a year and have worked within a year, 1,250 hours.
Robert Ingalls: 10:43 Now let's say that I don't have Coronavirus, but my spouse or my child has it. So is that something that would also be covered under FMLA?
Josh Van Kampen: 10:52 Yeah. One of the nice features of the FMLA is that it doesn't just cover your own medical leave, it covers your immediate family members. So for example, the FMLA even applies to scenarios where, let's say you have an ailing parent who has Alzheimer's or something. You can take off time to care for that ailing parent with Alzheimer's. Same goes for a family member with COVID-19.
Robert Ingalls: 11:16 We talked earlier about the places where there's a lot of travelers coming through. Let's say I work in one of those places, I contract Coronavirus at work and then I need to miss work. Could I at that point file a workers' compensation claim?
Josh Van Kampen: 11:31 Yeah, I would definitely encourage listeners to do that, because first of all, what is worker's compensation? That generally covers situations where an employee is injured at work or in connection with work. Usually that takes place in some sort of physical injury that occurs. But if you're on a business trip and you contract COVID-19, it'd be no different than you get in an accident and you were in the company car on a trip.
Robert Ingalls: 11:56 Yes.
Josh Van Kampen: 11:57 So yes, you should absolutely file that workers' compensation claim. How do you do that? It varies by state, but in general, you can initiate that process by reporting to your human resources department that you've suffered a workplace injury. And at that point, that triggers an obligation with that employer to give you a workers' compensation form to complete. So one of the nice features of the workers' compensation laws is that if you're going to be out on leave, that the employer would have purchased workers' compensation insurance. And so you're going to be paid while you're out.
Josh Van Kampen: 12:32 So remember you were asking me questions earlier about whether or not this is paid or unpaid leave, workers' compensation leave is paid. It varies by state, but in most states you get paid two thirds of your pay while you're out on workers' compensation leave. Also, your medical benefits are maintained at the same level while you're on a workers' compensation leave.
Robert Ingalls: 12:54 So if I contract Coronavirus and I notify my employer, at that point can they out me or can they tell my coworkers or management about this?
Josh Van Kampen: 13:02 So absolutely not. So under the Americans with Disabilities Act, it prohibits the disclosure by an employer of confidential medical information. That certainly would qualify. And so if an employer breached that, then you would have a claim under the Americans with Disabilities Act, even though COVID-19 probably doesn't satisfy the disability definition.
Robert Ingalls: 13:25 Okay. Now are there any other laws out there that we haven't talked about today that could offer some protection to workers?
Josh Van Kampen: 13:30 Yeah there's actually a law called the National Labor Relations Act, which its traditional application is in union environments where you've got steel workers or metal workers who are covered by a collective bargaining agreement. But what most people don't know, is that even if you're not in a union environment, the National Labor Relations Act can still protect you if you are asserting rights on behalf of other workers. In other words, it's called protected concerted activity, is the term under that law. But basically if you are standing up as a spokesman for other people that have a concern about workplace safety, you are protected under the National Labor Relations Act from being retaliated against.
Josh Van Kampen: 14:15 So let's say that you have some concerns about COVID-19 being present in the workplace and you go into a meeting with a supervisor and you frame it as it's an issue of, "I'm concerned for my own safety about COVID-19." You wouldn't be protected under the National Labor Relations Act because you haven't made it about more people than yourself. You're just talking about your own interests. But if you change that and you are saying that you're worried about your coworkers' safety and let's say now the employer wants to retaliate against you, you would actually have a good wrongful termination case because under the National Labor Relations Act, because you stood up and were asserting a health and safety issues on behalf of your fellow workers.
Josh Van Kampen: 15:01 So that's something where we're able to hitch to another law and to have our folks protected just by tweaking slightly the terminology they might use with their boss or with human resources.
Robert Ingalls: 15:11 All right, perfect. Well thank you, this is very timely information. And if you're listening and you have any questions, feel free, please do reach out and make an appointment to discuss this with Josh or any of his associates. All right, thanks Josh.
Josh Van Kampen: 15:24 And one more. I have one more thing for our listeners. I think that you and I need to be working on is the same analysis with the zombie apocalypse. And I can tell the listeners already that I'm pretty sure that if you're infected with a zombie virus, you're definitely disabled under the ADA and so we're going to have a lot more rights for our zombified listeners.
Robert Ingalls: 15:46 I look forward to the evolving law on that. All right, thanks Josh.
Josh Van Kampen: 15:49 Yep. You bet.
Outro: 15:52 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource, it does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.
