How Do I Approach My Boss About COVID19 Health and Safety Concerns?
Episode 243 | Author: Emilie Aries
Earlier this week, I received a DM on Instagram from a Bossed Up podcast listener with a question that millions of workers are facing right now:
"Do you have any advice for people like me who don't know how to approach their bosses about enforcing mask wearing, social distancing, etc. I think it could help a lot of people out."
Well, dear listener: you asked, and today I'm answering!
Let's break this down into 3 main questions about being forced back to work in the office, mandating mask-wearing at work, and calling people out who are putting you in harm's way.
First up: can my boss force me back to the office?
Unfortunately, the answer is yes, almost all of the time.
There are a few noteworthy exceptions:
The Americans with Disabilities Act (ADA) entitles workers to "reasonable accommodations" if you have a diagnosed disability. In this instance, mental health disorders absolutely do apply, so long as you've been diagnosed by a professional. Unfortunately, merely feeling anxious, burnt out, stressed, or depressed, doesn't meet the legal threshold. Furthermore, the interpretation of "reasonable accommodations" can be wide-ranging, and may not entitle you to remote work.
Another exception in some states exists for pregnant workers. In certain states, including Massachusetts, New York and California, there are pre-existing laws on the books that obligate employers to consider "reasonable accommodations" for pregnant employees. Again, what that means in practice is pretty subject to interpretation.
Finally in the Occupational Safety and Health Act of 1970, the exists what's known as the "general duty" clause, which says employers must guarantee their employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Proving that your employer has failed to meet this standard is difficult, legally, but if you have concrete, specific examples, you can file a complaint with the Occupational Safety and Health Administration (OSHA). The OSH Act also includes an anti-retaliatory clause, meaning you can’t be fired or demoted for asserting your right to a safe workplace — though a worker must file that claim within 30 days of any alleged retaliation.
Despite the fact that we are in uncharted waters as a world trying to navigate a global epidemic of such a massive scale, there has been no legally enforceable guidelines or standards coming from the federal government related to COVID-19 in particular. That means that the only workforce protections we can truly rely on during these unprecedented times is whatever laws were already on the books.
Can my employer require mask-wearing?
While our legal protections as workers are limited, there is some good news in terms of your employer's ability to protect your health and safety.
Bottom line: yes!
Your employer can require mask-wearing as a required condition of employment. In fact, you can even get fired for refusing to wear a mask if that's company policy
.That being said, companies who decide to enforce mask-wearing, must enforce it equally in order to protect themselves from discrimination lawsuits. If your boss implements or enforces mask-wearing for certain groups of workers and not others -- for example, an employer could face claims of race or sex bias if it doesn’t discipline a white, male executive who isn’t abiding by the policy, but enforces it among minority or female workers.
Notably, there are some key differences for employers who require masks versus those who choose to merely allow employees to wear masks.
Under the OSHA PPE Standard, if an employer requires employees to wear PPE, the employer must perform a hazard assessment, consider other alternative options to protect employees (like putting up a barrier between workers or workers and customers), identify and provide appropriate PPE for employees, train employees in the use and care of PPE, clean and replace PPE as needed, and create a plan that is periodically reviewed.
As you can imagine, those are all costly investments of company time and resources. So if your employer chooses to require face masks, they're held to a pretty high standard by OSHA.
However, if your employer simply allows the employees to voluntarily wear masks, none of these rules apply. That's true even if the employer pays for the masks and provides them - they can still say it's a voluntary program and not be held to OSHA standards.
Sadly, the unintended consequences of these rules, is there may be a financial incentive for your employer to make masks optional. This, of course, makes it much harder to hold our colleagues responsible for creating a safe work environment.
Either way, lawyers advise all employers to clearly tell their teams, preferably in writing, whether masks are required or if wearing one is voluntary.
So what do I do if my colleagues aren't wearing masks and I feel unsafe?
If you're put in this unfortunate position, consider these three avenues for recourse:
1. File a formal complaint
Your first stop should be filing a formal complaint with your company - either via the HR department or your manager. In this instance, you'd be filing a complaint about a colleague or colleagues who are not adhering to company policy, and asking the company to intervene.
If that doesn't yield the results you're hoping for, consider filing a formal complaint with OSHA. Keep in mind, when filing an OSHA complaint, you're filing against your employer for a lack of providing a safe workplace, and asking the government agency to intervene.
2. Take collective action with fellow workers
If all else fails, get busy organizing! The National Labor Relations Act protects "concerted activity" - like a collective walk-out after you've exhausted all other options and received no response. Technically speaking, you can't legally be retaliated against for this kind of collective, concerted action.
Now, in realistic terms: could you still be fired? Yes! Sadly, we see this happen all the time, despite it being unlawful. So be prepared for the worst, hope for the best, and document everything. This brings me to my final piece of advice...
3. Talk to an employment attorney
If you feel you're being retaliated against or want to know more about your workplace rights, seek out the counsel of a labor attorney. Any lawyer worth working with will offer you a free consultation before deciding to work together, so ask for time to talk through your options up front.
Keep in mind, going to court is an expensive, long process, and there are no guarantees. But sadly, it's sometimes the only recourse for justice.
At the end of the day, taking a stand always comes with risk. But in this case, you may be risking your life by not speaking up, too. It's a difficult choice that's going to be different for every person - so don't let anyone tell you what's best for you. Deciding if, how, and when you want to advocate on your own behalf is entirely up to you.
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