For once, I believe I can safely say that both the plaintiff and defense bars can finally agree on something: The United States has failed miserably to reign in COVID-19. And as a result of this failure, some of the people suffering most are our essential workers, who are disproportionately people of color and are oftentimes toiling for low wages. Historically, our economy has financially exploited this workforce. We are now seeing that exploitation—quite literally—manifest in the illness and deaths of countless people in our communities.
Though this may be an uncharacteristic introduction to technical insights about employee rights during COVID-19, I think it provides important context. At this moment, there is a great deal at stake. When workers seek legal advice concerning coronavirus, they are looking for protection within an economic milieu that has historically regarded labor as a tool of maximum extraction at minimum cost. This approach has shaped the modern workplace, from its architecture, to its operations, and the legal regimes regulating it. For example, when interrogated about 16,000 coronavirus infections and scores of deaths at processing plants across the country, Smithfield Foods Chief Executive, Kenneth Sullivan, argued that “[f]or better or worse, our plants are what they are. . . . Four walls, engineered design, efficient use of space, etc. . . . Spread out? Okay. Where?” Rejecting the slowdown of production lines, which would allow for increased social distancing, Sullivan’s indifferent observations demonstrate that those we have deemed “essential workers,” for purposes of the pandemic, typically do not have rights and benefits commensurate with their actual value to our economy and our society. Often, they toil in unsafe conditions, cannot afford to take unpaid leave, and have scarce access to sufficient paid leave.
As a civil rights law firm, Rathod Mohamedbhai LLC has been fielding countless calls about COVID-19. Early on, those who contacted us tended to do so after they were fired for requesting time off to quarantine or self-isolate. Although dependent on the circumstances, such workers should be able to bring retaliation claims under the Families First Coronavirus Response Act (“FFCRA”), the Family Medical Leave Act (“FMLA”), or the Colorado Health Emergency Leave with Pay Rules (“Colorado HELP Rules”).
In a nutshell, at the federal level, FMLA governs leave requirements for companies with over 500 employees. FMLA mandates providing unpaid leave for COVID-19 if all other eligibility requirements are met. Meanwhile, the FFCRA and the Colorado HELP Rules mandate that employers provide most workers, including part-time workers, paid leave of up to two weeks (eighty hours or less) if the leave is for quarantine, self-isolation, or if a worker who is exhibiting symptoms of COVID-19 is awaiting diagnosis. One difference between the state and federal laws is that employers with fewer than 500 employees must pay their employees at their regular rate of pay up to $511 daily under the FFCRA. Conversely, under the Colorado HELP Rules, the required rate of pay is two-thirds the employees’ regular wages, but there is no employee numerosity limitation. Moreover, the U.S. Department of Labor, in implementing the FFCRA, promulgated rules that exempted several categories of workers, most notably, those in the healthcare industry. Although a district court just recently, on August 3, 2020, invalidated that section of the regulations, coverage for many workers in the industry remains unclear for the foreseeable future. In contrast, the Colorado HELP Rules extend coverage to many (although not all) healthcare workers and certain other exempted groups. But, the Colorado HELP Rules expired on July 14, 2020, so they only provided protection during the time that they were in effect.
The FFCRA, FMLA, and the Colorado HELP Rules all include anti-reprisal provisions. A private right of action for a violation of these rights expressly inheres in the two federal statutes. If an employee is relying on the Colorado HELP Rules, though, enforcement of these anti-retaliation provisions must proceed by means of a wrongful discharge in violation of public policy claim. On July 15, 2020, the Healthy Families and Workplaces Act (“HFWA”) took effect, superseding the Colorado HELP Rules and expanding the federal leave requirements under the FFCRA to include employers in the state with more than 500 employees. The HFWA also provides a private right of action for retaliation. And under the HFWA, beginning in 2021, most Colorado workers will be entitled to six days of paid medical leave for any medical condition. Those working for employers with fifteen or fewer employees will see the paid leave mandate go into effect in 2022.
As stay-at-home orders began lifting across the state, our firm began to field an increasing number of calls from employees who were older or had underlying medical conditions, and from employees living in households with other individuals susceptible to acute COVID-19 symptoms. Many of these workers were deemed non-essential, but still had outward facing jobs in customer service, retail, and hospitality. Many were still returning to relatively low-wage work. Typically, their concerns fell into one of two categories: First, many workers were afraid of contracting the virus at work and dying or endangering the health of their household-members; second, other workers had returned to their jobs only to find working conditions that failed to meet public health guidelines. With respect to the former, between the Americans with Disabilities Act, the Pregnancy Discrimination Act (as amending Title VII), and the Colorado Anti-Discrimination Act, most essential workers are entitled to ask for a reasonable accommodation for any significant medical condition they might have, remote work being a popular example during the COVID-19 era. And although there is typically no duty under federal law that employers accommodate workers based on age alone, the process of aging often overlaps with the onset of other medical conditions for which employees may seek accommodations. The Equal Employment Opportunity Commission (“EEOC”) is regularly updating its website with guidance about an employer’s obligation to accommodate.
Essential and low wage workers do not get to enjoy such luxuries as work-from-home accommodations, however. For the farm laborer, the meat packing plant worker, the grocery store clerk, and the certified nurse aid, all must be physically present, oftentimes along with hundreds of other workers, and many times interfacing with the public. This limitation does not mean, however, that no accommodations are possible. Given the emphasis on work-from-home accommodations, which tend to favor wealthier, often white, professionals and executives, this nuance has unfortunately been lost. This is not to say that working from home should not be promoted, particularly during COVID-19, but when fielding calls from workers worried about pre-existing medical conditions, advise them to discuss possible safety measures with their medical providers. Governor Polis has suggested as much, issuing guidance on reasonable accommodations in the post-COVID-19 workplace. Absent undue hardship, employers must accommodate employees who request such safety measures as reduced contact with others. Potential accommodations include providing protective equipment, redesigning the work environment (plexiglass, tables, or other barriers to ensure distancing), temporary restructuring of marginal job duties, temporary transfers to different positions, or modifying work schedules or shift assignments to allow individuals with vulnerable medical conditions to continue to work. Furthermore, the Colorado Civil Rights Division (“CCRD”) issued guidance prohibiting employers from requiring vulnerable individuals to return to their place of work, including those above the age of sixty-five, individuals with chronic lung disease or moderate to severe asthma, individuals with serious heart conditions, individuals who are immunocompromised, pregnant women, and individuals otherwise deemed high risk for severe illness from COVID-19 by a licensed health provider. In a noteworthy expansion, the CCRD has also instructed employers, to the greatest extent possible, to accommodate workers who live in the same household as a vulnerable individual.
For those concerned about health and safety standards in their workplace, the federal Occupational Safety and Health Act (“OSH Act”) covers the vast majority of private sector employees. Under the OSH Act, employees have the right to a safe working environment. Among other things, employers must follow federal safety and health standards, inform employees about hazards, keep records of work-related injuries and illnesses, and provide required personal protective equipment at no cost to their workers. Similarly, the National Labor Relations Act (“NLRA”) generally gives any two or more workers the right to collectively seek improvements to their working conditions, including by complaining to management about unsafe or unhealthful working conditions. Hence, for workers who call with concerns about inadequate safety measures, there are a number of laws that they may seek relief through. Both the OSH Act and the NLRA prohibit retaliation. And if conditions at work remain unsafe, under the aforementioned guidance by Governor Polis, workers who refuse to work because of unsafe work conditions related to COVID-19 are still eligible for unemployment insurance.
There are myriad laws, orders, regulations, and guidelines concerning COVID-19, and they are changing by the day. Hopefully, they will be of some use to protect our workforce. But laws are only as strong as those that have the power and means to access them. And therein, may lie our biggest culpability. Those whom we have depended on during this pandemic to keep us safe, healthy, and fed, are those whose suffering we accept and whose voices are systematically silenced. Many of them have the least access to justice of us all. Laws are only as good as their lived experience.
Iris Halpern is an attorney at Rathod Mohamedbhai LLC specializing in employment discrimination. Before joining Rathod Mohamedbhai, Iris worked as a trial attorney for over seven years, ultimately serving as the Senior Trial Attorney and an Acting Supervisory Attorney in the Denver Field Office of the Equal Employment Opportunity Commission. In her career, Iris has served as the lead trial attorney on many class-wide cases, notably to enforce religious and disability accommodations and to eradicate sexual and racial harassment in the workplace. She is also active in the LGBTQ community, having piloted several cases seeking to expand protections for gay, lesbian, and transgender employees under federal antidiscrimination laws, and serving on the Board and as the 501(c)(4) Chair of One Colorado. She has published widely on various legal civil rights topics particularly in the fields of electronic discovery in employment discrimination cases and use of the rules of civil procedure and evidence in sexual harassment cases. She co-authored the chapter on a plaintiff’s perspective on e-discovery in the American Bar Association (ABA) & Bloomberg BNA treatise WORKPLACE DATA: LAW AND LITIGATION. Before coming to Colorado, Iris was a Fulbright Scholar in Toronto, Canada and worked for many years as a union organizer for the Service Employees International Union.