Essential employees reporting to work during the coronavirus pandemic say they’re haunted by a question: Will my boss tell me if there’s a positive case at my workplace?
Here’s what you need to know about your rights.
Is my boss legally obligated to tell me about a positive case in the workplace?
Employment attorneys we talked to said it’s hard to answer this question in absolutes because it’s such an unprecedented situation. But there’s no law that specifically requires employers to inform workers about a positive case in the workplace.
The Centers for Disease Control and Prevention’s guidelines recommend that employers alert workers if it’s possible they were exposed to someone who has tested positive. But enforcement of these guidelines is murky, at best. The Occupational Health and Safety Administration, the federal agency in charge of protecting workers, is not enforcing CDC guidelines as law.
Shannon Farmer, an employer-side employment attorney with Ballard Spahr, said her firm is advising clients to follow the CDC guidelines. But, she said, the guidelines raise questions like, how do you assess which workers were close enough to the employee who tested positive to possibly be exposed? And if we’re in a phase of community spread, where everyone is potentially exposed, how should that affect an employer’s responsibility to inform workers?
Workers could, however, sue a company for reckless endangerment and negligence if an employer does not tell them about a positive case. One such lawsuit, which alleges an employer failed to notify coworkers of a positive case, has been filed against Walmart on behalf of an Illinois employee who died of coronavirus complications.
What is my boss allowed to tell me about positive cases?
Employers are barred by the Americans with Disabilities Act from revealing the identity of a worker who tested positive, Farmer said. They can, however, ask for consent from the worker to reveal their identity, and in worker-side employment attorney Nan Lassen’s experience, workers almost always want their identity to be known because they want their coworkers to know if they’ve been exposed.
Employers can, as the CDC guidelines recommend, inform workers who they believe have been exposed through close contact with an employee who tested positive.
What is my employer supposed to do after it finds out about a positive case?
The latest CDC guidelines — which workers and health and safety experts have criticized — say that in essential workplaces, workers who have been potentially exposed can return so long as they’re not showing symptoms. The guidelines say that workers should wear a mask and practice social distancing, and that common areas should be disinfected.
Locally, Pennsylvania officials issued an order on April 15 saying that, upon learning of a positive case in the workplace, employers must take temperatures of all their workers and send employees home if they have a temperature above 100.4 degrees.
State spokesperson Lyndsay Kensinger said “appropriate enforcement agencies” are responsible for enforcing the Pennsylvania order, but the state has largely talked about the order as a guideline that could result in a warning for businesses that do not comply.
Is there anything I can do to get information about positive cases?
Lassen, an attorney at Willig, Williams & Davidson, suggests that you get together with your coworkers to ask your employer if there are any workers who have coronavirus symptoms who you may have been exposed to. Don’t just ask about positive cases, she said, since that assumes that workers have access to testing. (Though that question is still not foolproof, as workers who have tested positive could show no symptoms at all.)
If your employer refuses, Lassen says you should start rallying your coworkers to request the same information. Start a petition, she said. Publicize your dispute. Consider walking out or going on strike, like workers in meatpacking plants and Amazon warehouses have.
It’s important that you act with or on behalf of your coworkers because that will get you protection under the National Labor Relations Act, which says workers acting together to try to improve their working conditions cannot be retaliated against. Though it’s also important to remember that filing a complaint with the National Labor Relations Board about this kind of retaliation can take months or longer to settle.