Do Lawyers anticipate more CEPA and Whistleblower Claims related to COVID-19?

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The Conscientious Employee Protection Act (CEPA) and other whistleblower claims may be available to employees who refuse to go to work because working conditions are still unsafe in the wake of COVID-19. As a result, there will likely be a surge of CEPA and whistleblower claims over the next few years. Unfortunately, due to struggles in the economy, more employees will be faced with being laid off or fired. Although these cases will likely be in the minority, there are assumptions that some employees will claim whistleblower status to prevent themselves from losing their careers. This is also likely to increase simply due to the expectation that businesses will resume ‘normal’ operations by next year, despite many worker’s continued concerns over Covid-19 transmission.

Can an Employee Refuse to go to Work because of Concerns about Coronavirus Transmission?

Unfortunately, much of the current legislation in the United States that addresses workplace health concerns for employees has yet to incorporate many new protections for coronavirus. Although many people would undoubtedly prefer to stay home than risk transmission, there are currently no laws protecting a worker for doing so. In fact, your employer may expect you to still show up for your shifts, regardless of concerns. Unless you have authorization from your employer, refusing to work for any reason can result in your termination as an employee.

However, there are a couple of ways that employees can still take leave from their work if CEPA or whistleblower claims don’t apply. For example, if an employee felt that their employer was endangering the employee’s safety by not properly adhering to coronavirus containment measures and cleanliness standards, they could refuse to work until the problem was corrected, which is protected under section 11(c) of the Occupational Safety and Health Act (OSHA).

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Can my Employer Fire me if I am concerned about COVID-19 and Stay Home in Pennsylvania?

Like much of the rest of the United States, Pennsylvania are an “at-will” states. This means that many workers can be fired from their position at the will of their employer. “At will” states like Pennsylvania and New Jersey generally favor employer rights over their employees. Unless you and your employer have a contract that guarantees your employment for a period of time or is a part of a union (and therefore subject to collective bargaining), then you may have your employment terminated at any point.

Can Employees be Fired if they Self-Quarantine due to a concern about Coronavirus Exposure?

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Luckily for many employees, those who have potentially been exposed to Covid-19 are now subject to new federal legislation that extends them some extra protection should they need to quarantine. In March 2020, the President signed the Families First Coronavirus Response Act (FFCRA). Protections offered by the FFCRA extend to people infected with coronavirus, those experiencing symptoms, and those told by medical professionals to self-quarantine. However, if you are responsible for caring for someone with coronavirus and need to quarantine, or have a child at home dealing with quarantine, then you may also be protected. Full-time employees under the FFCRA are eligible for 10 days or 80 hours of paid sick leave, regardless of time spent with the company, to be used in a self-quarantine situation. The FFCRA also makes clear that this emergency sick leave can be used before the employee decides to use their own paid time off benefits as well.

What Recourse do Essential Workers have if they Contract COVID-19 in the Workplace?

Although Covid-19 specific legislation is still in its infancy, many governments have already pushed forward legislation offering protection to employees on the grounds of workplace safety. Employees should not have to choose between their job and their health, and unfortunately, many workers (essential and otherwise) have little choice in the matter. However, entities such as OSHA monitor workplace safety violations, and coronavirus is still applicable. If you feel that your employer did not adequately attempt to protect you and your coworkers from transmission by following guidelines and social distancing, they can be reported and fined. Although it may be hard to prove, if you can show that your employer’s gross incompetence resulted in the transmission of the virus, you may be entitled to legal recourse through the Conscientious Employee Protection Act (CEPA).

The employment lawyers at the Zeff Law Firm are already evaluating the effect of COVID-19 on employees and determining appropriate legal remedies. Contact us today if your employment has been negatively impacted by the pandemic.

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