Today, Explained - Working from work

Episode Date: September 23, 2020

What do a bus driver, a teacher, a McDonald’s employee, and a project manager with a conference on her calendar all have in common? Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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And then you've got lots of people getting back to business as usual, dining in, seeing movies, committing to that wedding that was postponed six months ago. Between the two are people who are returning to some sort of normalcy, but not feeling totally comfortable about it, going back to work with lots of reservations. And today we're going to talk about those people and what protections they have in this pandemic. My name is Jordan. I work at a fitness company in California. I've been working from home and it's been about six months now. Recently, I was requested to come to Texas for a business trip with the owner of our entire company who was flying in from Europe. Traveling during this pandemic is not something that I've done.

I haven't been on a flight since March. So this was my first flight throughout the whole pandemic. I felt like I didn't really have a choice in saying yes or no, because it was such an amazing opportunity. And I made jokes like, I'm probably going to die for my job. It was a risk I was willing to take, I guess. My name is Jen. Well, for the sake of this story, my name is Jen. And I work at a private school in New York. So once all of the schools shut down, I was working remotely. But middle to late summer,

it was decided that anyone who was working in the school would be required to come in. And exposing myself to the virus or exposing others to the virus made me incredibly nervous because the pandemic was not in the distant past. It was very much in the present. So I looked into options to see whether or not working from home would be possible, just as it had been in the spring. And that request was denied. And with that, I had a pretty quick decision to make. Would I go into the building or would I choose to take an unpainted leave instead? And I could not just think about myself in that matter. In reality, this decision had so much to do with my family and my family's experience, because

early on in the pandemic, I lost a very close family member to COVID. They were not much older than me. They were in far better health than me. So their death was a shock, and it was very devastating to my family. In the end, I took the unpaid leave. It wasn't an easy decision in many ways, but in some cases, it's the easiest, hardest decision I had to make because, as my siblings put to me,

we can't lose somebody again. My name is Allison. I am a school bus driver on Long Island in New York. I lost my job mid-March due to COVID, closing the New York schools, and I remained unemployed until the day after Labor Day when schools reopened. My boss told me that I had to go back to work, that I was not able to refuse the work or I would lose my unemployment. I have high blood pressure. I have diabetes. I'm middle-aged. I consider myself in a high-risk group. I've been very careful, only going out to groceries and doctor's appointments and coming right back. I don't even go through a McDonald's drive-thru. I can't take the risk. It's life and death, and I'm terrified. We were told that all the children are required to wear masks when they ride the bus and during the school day. But we were also told if a child doesn't have a mask, we should pick them up anyway.

There's no plexiglass. There's no plastic. There are no face shields. It's not enough. They haven't taken enough steps to protect us. I never thought of myself as an essential worker or a frontline worker. I'm a bus driver. I never thought I'd have to risk my life to do my job. Josh Idelson at Bloomberg News has been reporting on the challenges people face when they go back to work. And he stopped in his tracks when he found Irma Cruz. A single mother of three kids who works at McDonald's in Gilroy, California.

In July, she took a couple of days out sick because she was having shortness of breath and a cough. And then she went back to work because she says her boss was refusing to pay for sick days. And so she needed to go back onto the job. When she did, she got a headache. She got an Advil from a coworker. The manager told her to stay at work. And the next day, she tested positive for the coronavirus. Cruz, in an experience that echoed what I ended up hearing from a lot of workers around the country, said that her supervisor downplayed the risk of the virus, said no one else can get it from you if you spent less than 10 minutes with them, and that it was confidential, the fact that she had the virus. So Cruz, who had urged her supervisor to let her co-workers know that she had the virus, came to the conclusion after talking to the supervisor that that supervisor was not going to tell anyone about this. And so Irma started calling co-workers

herself and telling them that she had tested positive for the virus and they should know. She says that led to an angry phone call from her supervisor who asked her why she would tell people that she had the virus. And then hung up on her in anger for revealing her own COVID diagnosis to people she worked with. And the motivation here, according to Irma, is staffing. That previously there had been a situation where one of the workers there got the virus and when employees found out, they wouldn't come into work. And so it was hard to keep the shift staffed. So Irma's view was that the company was withholding information so that people would keep coming into work and that if she went along with it, if she withheld from people the information that she had the virus,

then it could be on her conscience that other people could get sick as a result. Irma Cruz's experience is part of a much larger pattern. At hundreds of companies, according to interviews and documents, workers at major employers like Amazon, Cargill, Target, and Delta workers at all sorts of companies saying they've been silenced by gag orders by their bosses that restrict them from talking about COVID-19 cases or discussing COVID-19 concerns. In some places, that takes the form of a written policy saying something like that employees should not inform others on their own about having COVID-19 or should not post on social media about their own health status. In other places, it's a matter of comments from managers or supervisors telling people that information that was shared with them or information they got from their own COVID-19 test is confidential and not to be shared with other people. Filings with federal and county agencies reveal there are hundreds of allegations of chilling workers from discussing COVID cases or concerns or punishing workers because they did.

How are companies justifying that? In many cases, workers say they were told this was a matter of privacy or confidentiality. And some of the comments we received from companies about these allegations echo that, that privacy is a concern here. But in many cases, we're talking about workers' own health information. You have workers who wanted to tell people that they had the virus and were told not to. In other cases, like allegedly at a cheesecake factory in Arizona, what was being described as confidential was not the fact of who had the virus,

but the fact that anyone in the workplace had COVID-19. And while workers say privacy laws have been cited as a reason to silence them about this, in fact, there is no federal law that requires companies to silence their own employees about health hazards in the workplace. To the contrary, there are actually federal laws that protect workers' ability to talk to each other and to other people about workplace concerns and particularly about safety hazards that they're confronting at work. And what public health leaders, including a former head of OSHA, have said in facing these concerns is silencing workers is exactly the opposite of what companies should be doing to get a handle on the virus. In fact, sharing information is pivotal to keeping people

safe. Has shining a light on these cases at the Cheesecake Factory, at Amazon, at McDonald's helped change any of these policies or any of these sort of norms within these companies? Since the story came out, I've been inundated with allegations and concerns and responses from workers at more companies who say this has happened to them. And this reporting is coming out as we've been seeing efforts to find ways to address this issue. And the broader set of COVID-19 workplace fears and hazards in a moment when the federal government's response has left many workers and advocates dissatisfied. So we've seen some states and cities moving to pass their own safety standards or whistleblower protection laws. We've seen litigation used to try to take on companies or take on the federal government itself to force a different response to these issues. We've also seen workers engaging in their own data sharing as a way to try to get around what they see as efforts to silence them and to prevent information from coming out.

What happened to Irma Josh? She is back at work and said that she still had not been paid for her time in quarantine, although the franchise owner of the restaurant says that her allegations mischaracterize what they've done and that they do provide sick leave and notify people who may have been exposed. Cruz, along with informing co-workers about her own health and refusing to treat it as merely confidential information. Also took a complaint to the county environmental health department as a lot of workers around the country have gone, whether it's to the federal government or to the county or into court,

trying to address choices by large and small companies throughout the United States that they say are making this pandemic worse. Standing between employees and companies are a whole lot of attorneys. I'll speak to one after the break. Thank you. digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an Aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an Aura frame for himself. So setup was super simple.

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This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply. As an employment lawyer, Alka Ramchandani Raj has been focusing on COVID-19 at the workplace since January, but for employers, not employees. She's been making sure companies have plans in place to keep employees safe. So I asked her about this situation so many American workers find themselves in. With no more extra benefits from the federal government, you can either go back to work or quit. And if you quit, there's no guarantee you can get unemployment insurance. Traditionally, yes. But there's nothing that would stop the employee from

filing. And in many situations, employers may not contest if an employee files. So an employee can always file for unemployment benefits. It may or may not be denied depending on the situation. But basically, employees face a tough road if they feel uncomfortable with something their employer is asking them to do because they probably won't get unemployment benefits if they quit, historically speaking. Historically speaking, yes. Employees do have the right to say if there's a constructive discharge issue, for instance, if they really do believe something is unsafe and they've talked to their employer about it and the employer hasn't corrected it,

in those cases, they may be able to claim constructive discharge. And in that situation, most of the time, unemployment is granted, at least in certain states that are prone to grant unemployment benefits to employees. And how many states are those? Quite a few, I would like to say. Like half, less than half? It's hard to say. I would say about 50%. Huh. So what about the rest of the country? What about the 50% who aren't going to get unemployment and might be forced back into an uncomfortable position or maybe even forced back and then told not to say anything when people come down with COVID, like we heard about Irma. Well, in those situations, employees have the right to go to an attorney and try to see what other claims they can allege against their employer. There's always some sort of recourse. And if an employer is doing something that's against the law, there's always that

ability for the employee to file a lawsuit against the employer, which is what we see across the nation. With COVID-19, we are seeing an increase in whistleblower claims and other claims of that sort where the employee may complain about a workplace issue, a workplace exposure issue. In addition, they can also complain to OSHA. OSHA is accepting complaints. I could tell you specifically to my state, California, the division had received over 3,500 complaints over four months between, I think it was February and July. I mean, what's the liability employers have if they are, you know, causing super spreading events right now, if they mandate that people come back and then all of those people get sick?

Well, there's a lot of liability that's involved. An employer could be, of course, shut down. But on top of that, there could be wrongful death claims if there's a fatality involved. There could be, of course, numerous workers' compensation claims if those employees did actually get the virus at work or if they're in a state where there's a presumption that if an employee is working and they contract COVID-19, they got it at work. From an OSHA standpoint, in those facilities where there's clusters of cases or there's outbreaks, you know, you could have an extensive amount of penalties. The largest we've seen with COVID-19 was in California, which was a $400,000 violation. So there's a lot of different types of liability that can come up if an employer is not trying to protect its workers.

You're kind of in the middle of this, advising companies on health and safety for employees. I wonder, you know, do you think this situation we're in favors employers or employees? Employers stand to lose a lot of money. Employees could lose their lives. I think it depends where you're at. I think there are some states like Oregon, Virginia, California, that either have developed emergency rules or developing emergency rules, even Michigan, where they are properly inspecting and investigating any type of COVID complaint. We are seeing a lot of that in many states. And in other states, probably not. As I mentioned, 50% of states at least have a pretty strong

unemployment program. I would say 50% or more states also have a very strong occupational safety and health program. There are 22 separate states that run separate from the federal government that have their own state program. So there definitely are those states that are, I would consider, very much employee-friendly, as there are those states that are definitely more employer-friendly. So if you're lucky, you live in a state that has the infrastructure to protect you, and if not, you're kind, you live in a state that has the infrastructure to protect you. And if not, you're kind of out of luck. I wouldn't say you're out of luck.

I think you just have to look at other avenues to try to get protection. You can always make a complaint to the federal government. We have seen federal inspectors come in. In fact, I have many cases right now with employers that are being inspected by federal OSHA as well. And there's always attorneys. Alka Ramchandani Raj is an attorney. She works at Littler Mendelsohn. I'm Sean Ramasuram. This is Today Explained. Thank you.