Understanding Your Employee Rights
Though COVID-19 continues to spread throughout the world and transform how we live our lives, many sectors of the economy are returning to work. Because transmission remains a very real possibility, workplaces are required to maintain new levels of mitigating safety measures to protect both customers and employees.
Still, some employees have discovered corners are being cut in their workplace, especially when COVID-19 safety measures become costly or inconvenient. The risk of infection remains, however, meaning violation of state and county-level safety protocols represents a threat to everyone’s health. If you have encountered problems, you may be wondering what options you have and what sort of consequences you might face. Below, we review what you can do about COVID-19 safety violations and what your boss is and is not allowed to do in response.
Is My Workplace Following COVID-19 Safety Guidelines?
Our understanding of COVID-19 and how it is transmitted is constantly evolving, and so too are guidelines governing business to reduce spread. California has continuously updated their state-level operating protocols for various industries, but county guidelines can sometimes be even stricter, so make sure you check the local rules relevant to your workplace.
At this point, some rules are universal. In most circumstances, both customers and employees are required to wear masks. Physical distancing is mandatory except in situations where it is not logistically possible. Business locations must cap admittance well below their usual capacity.
There are many additional rules that might be specific to your industry, so be sure to review the most updated state and local guidelines. Your boss should be keeping you and your peers up to date on changes and adjusting operations thusly, but unfortunately, this does not always happen.
Note that a failure to enforce carries the same weight as deliberately not following a given protocol. For example, it is a safety violation if your boss refuses to intervene in instances where customers or your peers do not wear masks.
Once you have identified a workplace safety violation, note the specifics of what occurred as well as where and when it happened. Look specifically for patterns of behavior. Consider speaking to your peers to see if they also recognize the problem and feel unsafe as a result. Remember, there is strength in numbers.
How Do I Approach My Boss About a COVID-19 Safety Issue?
Next, consider speaking to your boss, ideally with one or more of your peers. Avoid an accusatory tone, if possible, and lay out your concerns. If necessary, outline solutions to help amend the issue. It is conceivable that your boss may not have been aware of a changed regulation and will address the concern once you and your colleagues raise it.
Be aware that, from the moment you raise a legitimate safety issue, you are now protected from disciplinary action under California law. Reporting workplace safety issues is considered a protected activity, meaning your boss is unlawfully retaliating against you should you experience any adverse effects following your conversation.
Hopefully, though, your conversation will end here. Your boss will recognize the problem, work to solve it, and keep their employees and customers safe and happy.
My Boss Refuses to Address the COVID-19 Safety Problem. Now What?
Unfortunately, some unscrupulous bosses will refuse to address problems under a litany of excuses. They may claim the new protocols are unreasonable or too disruptive, make their customers (or them) uncomfortable, or make running the business economically unfeasible. Even worse, they might claim the virus and its effects are a hoax.
No matter their excuse, they are still required to follow county and state COVID-19 safety guidelines. There are no exemptions or waivers. Should your boss attempt to intimidate you from pursuing the matter further or claim the business will shut down if they are investigated, understand they are engaging in unlawful workplace harassment. You are always permitted to report workplace safety violations.
In California, you have two options in formally reporting a COVID-19 safety problem. The first is through Cal/OSHA, the state’s Division of Occupational Safety and Health. This is the agency that traditional investigates all types of workplace safety complaints. You should submit as much information as possible with your complaint, which should hopefully initiate an in-person investigation from a Cal/OSHA officer.
The drawback to contacting Cal/OSHA is that the agency can be slow to respond. In recent months, the agency has been reportedly overwhelmed by complaints, meaning you should not and cannot expect a prompt response. And while a business can receive fines for COVID-19 violations they uncover during an investigation, drastic action will not be taken until a pattern of behavior is discovered, typically requiring multiple visits.
Another option is to contact your county’s department of public health. COVID-19 safety problems that could enable or exacerbate transmission are considered risks to the community’s broader public health, meaning the department takes complaints seriously. They may be more responsive as they seek to stymie any potential outbreaks and can sometimes mandate more immediate, direct changes to unsafe workplaces.
Are There Any Alternatives to Addressing COVID-19 Safety Violations?
If you have filed formal complaints with Cal/OSHA and your county’s department of public health but have yet to get a response, it is likely they are inundated in a backlog of similar issues. This is no comfort to you, as you are still trapped in a workplace that is not taking the pandemic seriously.
The reality is government agencies can be frustrating slow to respond, even during COVID-19. That does not make the risk of transmission in an unsafe workplace any less significant, and you may be wondering if there are alternatives – and what risks they might carry.
Some have turned to social media or other online sharing tools to call attention to unsafe workplaces. Many of these moments can go “viral” and lead to thousands of strangers attempting to shame a business into compliance.
While this move can be satisfying, it may not be a legally sound strategy. It remains murky if leaking a safety violation to a social media account carries whistleblower protections. There is a decent chance your employment agreement includes some provision governing how you are expected to represent yourself and the company on third party websites, including social media accounts. Violating that clause – which you almost assuredly would by directly shaming an employer – is likely grounds for dismissal.
It is possible you could claim wrongful termination in this type of situation, but a court may not look favorably upon the choice to leak information on a social media versus pursing the matter through official channels. There is also no guarantee a viral post will actually compel your boss to solve the safety issue, though it could prompt more expedient visits from Cal/OSHA or department of public health officials.
Contacting your local officials might be a better alternative. Some workers have had luck in quickly addressing COVID-19 safety problems by communicating with the offices of their city council member, representative, or even California Governor Gavin Newsom. Getting an elected official’s attention might do more to quickly solve the problem without opening you to the liabilities of a social media post.
My Boss Has Retaliated Against Me Because I Reported a COVID-19 Safety Violation. What Should I Do?
Again, it is illegal for your boss to retaliate against you for raising or reporting a workplace safety violation. They also cannot pressure you into not reporting a violation.
Some examples of unlawful retaliation and harassment when addressing or reporting a safety violation include:
- Reducing your hours or other reductions in pay or benefits
- Giving you unfavorable job assignments
- Threats that the business will not survive if investigated or fined
If you have experienced any of the above as a result of speaking about a COVID-19 safety issue, your boss has likely acted unlawfully. You should immediately contact our attorney at Limonjyan Law Group. Our practice is dedicated to helping California employees fight for their rights. We understand it can be intimidating to stand up to your boss, especially in such a turbulent economic moment, but we will do everything in our power to make sure your employer is held accountable for their actions.
Call (213) 377-6707 or contact us online to request a free consultation. We offer our legal services in English, Russian, Spanish, and Armenian.