Legal experts answer common questions about returning to work during the pandemic

Posted at 1:00 PM, May 04, 2020
and last updated 2020-05-04 18:41:26-04

CLEVELAND — As Ohioans begin to go back to work during the COVID-19 pandemic, we're asking legal experts what your boss can and cannot make you do.

What if you don’t feel safe returning to the workplace?

Legal experts say fear is not a legal reason to refuse to work. They say unless you have a qualifying physical or mental health condition under the Americans with Disability Act, you likely are not legally protected to protest that request.

"Generally speaking, if someone is being called back to work, the expectation is that they return, and we are certainly cautioning people that if they refuse to return to work, and they are currently receiving unemployment benefits, that refusal will cut them off from getting unemployment," said Julie Cortes, supervising attorney at the Legal Aid Society of Cleveland.

She said if you have a qualifying condition, there still has to be a conversation with your employer about requesting a reasonable accommodation.

And just this weekend, Ohio's lieutenant governor spoke about possible accommodations for people who have a health vulnerability or who don't have child care. However, he gave no details about what those accommodations may look like.

Can your employer require temperature and symptom checks and require you to stay home?

"It is fine for employers to do temperature checks and ask employees to report whether they’re symptomatic, and if they report that they’re symptomatic or showing signs of the virus, they can be sent home," said Cortes. "That’s for the safety of everyone in that workplace as well as non-employees who may be entering that space.”

Will workers' compensation cover me if I get COVID-19 on the job?

"Workers' compensation still has that big causation issue," said Andrew Margolius, of Margolius, Margolius & Associate. "So, the employee has to show that they caught this virus at the workplace. Much easier said than done, but it depends on the industry.”

What if your employer is not following the mandatory operating requirements for safety established by the state?

"If that employee sees that there are not workplace precautions taking place, they can contact HR," he said. "Put something in writing. Identify there is a work hazard, maybe they might even have whistleblower status."

Margolius said to put it in writing and send it to your supervisor, boss and human resources, and print a copy for your own records.

The governor's office says employees who believe their employer is not following the safety guidelines in the order should call their local health department.

Bottom line: legal experts say both employer and employee are navigating uncharted territory and encourage as much open dialog between both as possible.

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