Veteran attorney explains rights of people heading back to work and hoping to stay safe

My workplace is reopening, but I’m afraid conditions there are unsafe. What can I do?

The North Carolina Division of Employment Security will consider that you have good cause not to return to work, and you may be eligible to continue to receive unemployment benefits, under the following circumstances:

1. You have been diagnosed with or have symptoms of COVID-19 and a medical professional has advised you not to go to work;
2. A member of your household has COVID-19 or you are caring for a family or household member with COVID-19;
3. You are at high risk for COVID-19 ( 65 years of age or older, or have serious underlying medical conditions including being immunocompromised or having chronic lung disease, moderate-to-severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease and undergoing dialysis, or liver disease);
4. You are the primary caregiver of a child or person in your household whose school or care facility is closed due to COVID and you can’t work because of the closure;
5. You can’t get to work because of a quarantine order or a health care provider has advised you to self-quarantine;
6. You can’t report to work because of a government order regarding travel, business operations, or mass travel;
7. You reasonably believe there is a valid degree of risk to your health and safety due to a significant risk of exposure or infection to COVID-19 at your employer’s place of business due to a failure of the employer to comply with guidelines as set out by the CDC, other governmental authorities or industry groups as may be found in CDC guidance, the Governor’s Executive Orders, or other binding authority; or due to objective reasons that the employer’s facility is not safe for you to return to work.

I have returned to work (or I have been working), and things are not safe. What are my options?

1. Raise your concerns with your employer. Workers have the most legal protection when they bring complaints or concerns to their employer in a group of two of more people. Look at the CDC and OSHA guidelines for businesses. Be as specific as you can about what you think needs to happen in your workplace in order for you to safely return to work.
2. File an OSHA complaint. You have a legal right to a safe and healthy workplace. You can file a complaint with the NC Occupational Safety and Health Division by calling 1-800-NC-LABOR or filing a complaint online. You do not have to give your name, but if you don’t, be as specific as you can about the workplace location and the problems (such as a lack of masks on the processing floor, or no social distancing between employees in the warehouse). Let OSHA know how many people are exposed to the unsafe conditions.
3. If you qualify, request paid leave. If you have a child who is not able to attend school or daycare because of COVID-19 and your employer has fewer than 500 employees, you may qualify for up to 12 weeks of paid emergency leave. This leave is paid for by the federal government through your employer, and is paid at 2/3 of your normal pay up to a capped amount. It is available to people who cannot work or telework because the child’s school or daycare is closed.
4. Apply for unemployment benefits, if you decide not to stay at work. If you leave your job, you will need to show you had good cause to do so in order to get unemployment benefits. See the information on page 1 of this flyer about when you may have good cause. Get a doctor’s note, if you are at high risk.If you are getting paid leave through your employer, you must use that leave before applying for unemployment. All applications during the COVID-19 crisis must be filed online or by phone, 1-888-737-0259. If you are denied unemployment benefits, you have 10 days to appeal the agency’s decision against you. You need to appeal in writing.

I have COVID-19. Now what?

1. Ask your employer for emergency paid leave. You are entitled to 10 business days or 80 hours of paid leave related to COVID-19, in addition to any leave provided by your employer, if you work for a public employer or an employer with fewer than 500 employees (including employers that are franchises). Health care providers and emergency responders may not qualify.The leave can be used: To obtain a medical diagnosis or care if experiencing symptoms or to comply with a medical recommendation to self-quarantine or *to care for an individual advised to self-quarantine; To comply with a federal, state, or local quarantine or isolation order or *to care for an individual subject to such an order; *To care for a child if school or place of care is closed or child care provider unavailable due to coronavirus ; or *Because you are experiencing any other substantially similar condition specified by certain federal officials (this has not been defined by the government). Payment will be based on your regular rate of pay. The maximum payment is $511 per day/$5,110 total for self-care, $200 per day/$2,000 total for family care. * Only 2/3 pay is required under these circumstances.
2. If you are not able to get paid leave, apply for unemployment benefits. If you are not eligible for emergency paid leave or for other paid leave through your employer, you may qualify for unemployment benefits. See the information on page 1 of this flyer.
3. Cooperate with health officials. Your co-workers need to know if they could have been exposed to COVID through contact with you. Respond to health officials’ questions about who you have been in close contact with you.
4. Consult an attorney if you want to file a worker’s compensation claim. It is likely going to be difficult for most workers to qualify for workers’ compensation benefits related to COVID-19. If you think you contracted COVID-19 at work and you want to file a claim, consult an attorney.

Can my employer send me home if they think I have COVID-19?

Your employer can probably send you home as it sees fit, but you are entitled to paid leave. See the information on paid leave in this flyer.

If you think your employer is discriminating in who it is sending home because of race, color, religion, gender, national origin, or another protected category, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days.

Submit your information online to make an appointment to speak with someone by phone. If you don’t have internet access, or you are approaching a deadline to file, call 1-800-669-4000.

Carol Brooke is a senior attorney in the North Carolina Justice Center’s Workers’ Rights Project.

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