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Rights of US Employees in Light of the Covid-19 Crisis

Article written by Smrithi Shibichakravarthy. Edited by Sugandha Nagariya.


COVID-19 and Workers Rights in America during the pandemic

ABSTRACT (Gist of the Entire Article)

The COVID-19 crisis has broad implications on a global scale. One of the major effects of this pandemic is a severe increase in unemployment rates, especially in countries like the United States. It is important that even in the light of the crisis going on, the rights of US employees are protected along with their best interest. 

Human Resource Law has a major role to play in helping employees understand their rights and inform them of what action they can take to make sure that their employers do not take advantage of or mistreat them. 

The Occupational Safety and Health Act of 1970, is an act passed with the intention of assuring the safety and health of the workers nation-wide. 

It gave rise to Occupational Safety and Health Administration (OSHA) which works towards creating safe work environments and has established standards to be followed by companies under the federal government. The General Duty clause states that employers must make sure their employees are not exposed to recognized hazards. 

Wages and hours are dealt with action plans. 

An issue that has come up is employers forcing their employees to come to work without ensuring a safe workplace, action can be taken by contacting OSHA. As per the Health Insurance Portability and Accountability Act (HIPAA), employers cannot disclose the identity of their employees who have tested positive for corona virus. 

According to the US Employment Equal Opportunity Commission (EEOC), discrimination of employees Based on their national-origin such as discrimination against Asian-Americans would constitute harassment. 

There are also programs for unemployment benefits. This article presents some major issues you need to know concerning US employee rights in light of the COVID-19 crisis.

INTRODUCTION

It’s no secret that we’re all currently in the middle of a crisis due to the COVID-19 pandemic. Unemployment rates all over the globe has hit an all-time high, while over 3.8 million people have applied for jobless benefits within a period of six weeks in the US alone. 

As of April 2020, the unemployment rate rose to a terrifying 14.7 percent due to losing over 20 million jobs which is reported to be the highest of the rate since the Great Depression. Keep in mind that the Great Depression was nearly 90 years ago, since then the US hasn’t experienced anything quite as economically devastating as the current situation. 

"In April, the unemployment rate increased by 10.3 percentage points to 14.7 percent. This was the highest rate and the largest over-the-month increase in the history of the series (seasonally adjusted data are available back to January 1948)," – The US Department of Labor in their monthly jobs report.

Businesses are going through an extremely tough time, so the major blows to the working class include cuts in wages or firing of employees with ‘redundant’ jobs. This has resulted in a huge amount of people who are struggling to make ends meet, confused about what to do now and worried if they’ll ever get another job. 

This is where Human Resource Law (HRL) has an important role to play and through this article you will be able to understand how HRL is used to protect your rights as an employee. 

What is Human Resource Law (HRL)?

Law relating to managing employees in a workplace

Human Resource Law (HRL) is sort of very broad term encompassing legal aspects related to Labor and Employment laws. If you look at the Management Model for any business organization you will find that, there is a Human Resource Sector, commonly called the HR Department. 

HR is responsible for essentially dealing with humans, they are expected to strategically manage the employees within an organization while being in compliance with the laws that govern employee rights, and employer obligations. 

HRL covers the work functions and duties of these HR professionals such as hiring, firing, wages, employee paychecks, employee benefits, workplace safety and privacy issues alongwith the goal of preventing discrimination or harassment. 

HR hands out handbooks and manuals which cover company policies and procedures that the employees can refer to and are expected to abide by. 


Human Resource Law is an active field given there are numerous issues that arise in an employer-employee environment, and it is important that an employee understands his rights to protect himself and those rights from being violated. 

Who deals with Human Resource Law?

The US Department of Labor (DOL) is organized into multiple divisions as follows:

The DOL is a government body which says their goal is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights. 

They deal with over 180 federal laws which mandate and regulate many workplace activities for about 150 million workers and 10 million workplaces. According to the DOL website, employees have the following rights:
  1. To be trained in a language you understand
  2. Work on machines that are safe 
  3. Be provided required safety gear, such as gloves or a harness and lifeline for falls
  4. Be protected from toxic chemicals
  5. Request osha inspection, and speak to the inspector
  6. Report an injury or illness, and get copies of your medical records
  7. See copies of the workplace injury and illness log
  8. Review records of work-related injuries and illnesses
  9. Get copies of test results done to find hazards at the workplace.

Workplace Safety and Health

The Occupational Safety and Health Act of 1970 was passed by a bipartisan Congress "...to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 

This Act gave rise to the Occupational Safety and Health Administration (OSHA) which was created in the Department of Labor. OSHA has been geared towards protecting workers since the 1970s and has established standards to be followed in the workplace by all organizations under the power of the federal government. 

OSHA has been successful in reducing the work-fatality rate to half of what it was and has also reduced the injury and illness rates. As per Section 5 with regard to Duties in the OSH Act of 1970. It states as follows:
“(a)Each employer --",Shall furnish to each of his employees, 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 to his employees;”
This is part of the General Duty clause which OSHA enforces with the interest of protecting employees from recognized hazards such as the highly contagious COVID19 virus. 

The onset of the nationwide lockdown created a situation where non-essential businesses were forced to close, and everyone working for a non-essential business had to work from home or found themselves without a job. 

The essential businesses that were allowed to stay open had to deal with effects of the pandemic head-on and were faced with the issue of making sure that their employees, who are considered as essential workers, are able to work in an environment that does not cause them harm. 

This became especially tricky because safety regulations called for social distancing and led to the workers with ‘redundant’ jobs being let go of suddenly. Many remaining workers had to endure cuts in their wages and there was stress cast upon people who worked hourly jobs because it meant that they had to be showing up to work to earn money, or they wouldn’t be able to support themselves.

OSHA prepared a guidance plan called “Guidance on preparing workplaces for COVID-19” to help companies respond in the event of corona virus in the workplace. 

They also prepared guidance regarding respiratory protection equipment which is very important especially for health-care workers.

OSHA can require employees to wear personal protective equipment (PPE) as per the guidelines established in the guidance, PPE is vital to protect the workers and it is absolutely mandatory in the health care sector for those working directly with COVID-19 infected patients. 

The current situation has caused a severe shortage in the availability of PPE and the health care workers are practically begging for supplies. There have been online surveys and requests towards OSHA in order to bring emergency order for PPE supply. 

This is one of the major issues that the Government needs to tackle to ensure a safe workplace.

How are Wages, and Hours affected?

Wages and Hours of Work for Employees are affected in USA during the COVID-19 pandemic.

On April 1st of 2020, the U. S Department of Labor announced the new action that would be taking place regarding benefits for American workers and employees through the protection and relief offered by the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. 

Both of these acts are a part of the Families First Coronavirus Response Act (FFCRA). The rule regarding the regulations being implemented with respect to these acts was published by the DOL’s Wage and Hour division. 

The purpose of FFCRA is to basically reimburse American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons which are related to COVID-19. 

This will provide a huge amount of relief to employers and employees as it lets the workers stay on their payrolls while at the same time can abide to the public health measures. 

There is also the implementation of public health emergency leave under Title I of the Family and Medical Leave Act (FMLA) as well as emergency paid sick leave. This would help the families who are dealing with the public health emergencies arising out of the COVID-19 pandemic. 

Emergency Paid Sick Leave Act (EPSLA) requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for reasons which are related to COVID-19. These reasons may include the following as per the DOL website:
  • The employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine;
  • The employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
  • The employee is caring for his or her son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.
According to the Emergency Family and Medical Leave Expansion Act (EFMLEA), employers are supposed to provide up to 10 weeks of paid, and 2 weeks unpaid, emergency family and medical leave to eligible employees if the employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.

What if your employer forces you to come to work?

Due to the corona virus pandemic, the country was ordered into a Lockdown and that made it difficult to do everyday things such as using public transport to get to work or to leave the house without worrying about being hours at end in contact with strangers who could be infected with the virus and spread it to you which would then spread to whomever you’re in contact with. 

Now with all this fear and worry in mind, your boss still demands that you show up to work and your workplace doesn’t have the proper safety measures but if you don’t show up, you’ll be fired. 

This is the sad reality for a lot of Americans who have been threatened about losing their jobs and are asked to risk their safety for non-essential jobs. 

If you find yourself in a situation where your boss is making you show up to your workplace you are legally allowed to file a complaint with OSHA without a fear of retaliation, and they will conduct an inspection to see if the workplace is at high-risk for infection. 

OSHA also has compliance assistance and cooperative programs. They will investigate and further determine if a workplace is safe for its employees before allowing that business to run. 

Can your employer disclose your identity if you test positive for corona virus?

As per the Health Insurance Portability and Accountability Act (HIPAA), it says that only official health agencies like the CDC or any other health departments can disclose identifiable information without a patient’s authorization. 

This means that an employer cannot disclose the identity of an employee that has been tested positive for COVID19 without the employee’s permission. This is to ensure the privacy of the employee is protected. 

However, the employer does have a duty to inform the employees that someone has been infected in order to inform them of the risk. 

What if your employer discriminates against you because they think you have corona virus?

The majority of the population are scared, and many people are misinformed about the methods of spreading of the virus and its symptoms and treatment. You may remember the recent unfortunate incident of a couple consuming a form of chloroquine phosphate because they heard President Trump call it a ‘game changer’ but they were clearly not educated on the medicinal usage of chloroquine and it resulted in the man dying and the woman being hospitalized. 

The fear in the mind of the people causes them to make irrational decisions and hence there is discrimination perpetuated by prejudice.

According to the US Equal Employment Opportunity Commission (EEOC), employment discrimination on the basis of race, color, religion, sex, national origin, age, disability or genetic information is a form of Harassment which is a violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA). 

In light of the current circumstances and suspected origin of the COVID19 virus being Wuhan, China, there has been tremendous discrimination against Asian-Americans. 

If an employer were to discriminate against hiring someone or a current employee because of their national origin, then it would be a violation of Title VII as mentioned above. So, it would be considered harassment if an employer denied a job to someone because their national origin is China, and they mistakenly believe that all Chinese people are infected with the Corona virus. 

However, if he were to deny the job on reasonable grounds (ex. having traveled to or been in Wuhan recently, showing symptoms of being sick, having been in contact with someone who has tested positive) that he suspects that particular person is infected he can also request them to take the test for the virus. 

If you believe that you are a victim of employment discrimination you can file a complaint with the EEOC for further action. 

Are you eligible for Unemployment Insurance?

Terms and Conditions exist to claim insurance during COVID-19 pandemic

This situation has come to the level where the Corona virus Aid, Relief, and Economic Security Act (CAREs) has expanded unemployment benefits to self-employed and part-time workers through Pandemic Emergency Unemployment Assistance which is to provide up to 39 weeks of benefits beginning in late January and possibly ending by December 31st. 

CAREs is a 2 trillion dollar economic relief plan. There are several other programs as well to receive assistance under CAREs. The Federal Pandemic Unemployment Assistance (FPUA) basically covers the unemployment benefit of 600, dollars a week for four weeks running through July 2020. 

The people eligible under it are eligible under the following two programs. 

Pandemic Unemployment Assistance (PUA)

This program provides benefits to freelance workers or independent workers or essentially those people who did not have a long enough work history to normally apply for unemployment benefits. 

To qualify you need to provide self-certification that you are able to work, available for work, and that you are unemployed, partially employed, or unable or unavailable to work because of one of the followings COVID-19-related scenarios:
  • You’ve been diagnosed with corona virus or you seem to have symptoms and are waiting to be diagnosed.
  • Someone in your household has been diagnosed with corona virus.
  • You are providing care for someone who has been diagnosed with the virus.
  • You are currently quarantined or have been advised to self-quarantine by a health care worker.
  • You are unable to get to your job, were supposed to start your job, had to quit your job or were laid off due to the pandemic.
  • Your workplace is closed as a direct result of the lockdown orders.
  • You have become the primary earner for your household because the head of your household passed away due to the corona virus.
  • You meet any of the others criteria set by the Secretary of Labor. 
There is also the Pandemic Emergency Unemployment Compensation (PEUC) program which is to help the people that exhausted their unemployment benefits, they would be able to get an extension of 13 weeks for their benefits if they meet the requirement of the CAREs act which is “able to work, available to work and actively seeking work”. 

To apply for unemployment benefits you need to approach your respective state. You can do so through a website such as this one.

WRAPPING IT UP

To sum it all up, we have covered a few major aspects of Human Resource Law in the US which are essential in understanding and protecting employee rights in the light of the crisis caused by COVID-19. 

There are multiple issues that branch off the main problem which is the extreme rise in unemployment rates. Protecting the rights of workers is very important as they lay the foundation for the country and it is of the essence of the Nation to protect its citizens. 

Essential workers have faced a lot of problems with regard to workplace safety and health issues and major changes in their wages and hours along with other societal issues as well like discrimination. Eleanor Roosevelt once said, “Workplace Rights are Human Rights”. 

The issues discussed in this article regard civil rights and more fundamentally we are looking at the workers as citizens of the country who need to be protected from workplace injustice through these various acts and with the help of government agencies. 

More importantly, as an employee you need to be aware of your rights and be able to get answers for your questions regarding what you can do to sustain yourself through this crisis and what action you can take. Hopefully this article has provided a valuable insight on the Rights of US employees in light of the COVID-19 crisis.


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Author Bio: Smrithi Shibichakravarthy is a BBA,LLB(H) student at ICFAI University and an intern at WinSavvy. Connect with her on LinkedIn.

Editor Bio: Sugandha Nagariya is a law student at GLC, Mumbai and is an intern at WinSavvy.com. Connect with her on LinkedIn.

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