COVID-19 AND EMPLOYEE HEALTH CONCERNS IN THE WORKPLACE — ONE MAN’S STORY

I recently responded to an online public but anonymous inquiry by an employee with concerns about Covid-19 infection at work.  My response is useful however to other older workers who are at risk.  Here’s his question and my response:

Can I leave my job due to a risk of infection or exposure during this current covid 19 crisis if my employer doesn’t close down?

I am 74 years old and according to the governor’s guidance from the state of California am urged to stay home..I am currently employed and wanted to know if I leave my job due to being high risk of exposure or infection ( I have medical conditions and my wife had a heart attack in May 2019).. can I apply for unemployment? My employer isn’t taking things seriously and has told everyone to continue to work..
also I do have an approved FMLA for my wife until June but it isn’t paid..social security isn’t enough to cover our monthly mortgage and life expenses, that is why I continue working..
Question 2..
Can I collect both social security and unemployment?
Question 3:
Can my employer fire me for deciding to temporarily leave my job during this crisis?

LEGAL GUIDANCE:

First, the easy answers: Q1: Yes, you can always apply, and the application can be made online without ever visiting an EDD office. Your real question is whether you will qualify. See response to Q3, below, and my recommendation.

Q2: Yes, you can collect both and the U.I. payments do not reduce your S.S. payout as the SSA does not view UIB as “earnings.”

Q3: Leaving is not the question. The question is how you choose to leave and the specific reasons you reasonably hold for leaving. This health crisis places all physically proximate workplaces at risk, especially if social distancing is not always possible. The California Health and Safety Code and the federal OSHA laws require an employer to maintain a safe workplace and to refrain from retaliating against an employee who resists unsafe work practices.

California disability accommodation law overlaps these protections by requiring the employer to make adjustments to the work procedures if doing so can be accomplished without “undue hardship” and disruption. I understand why you wouldn’t want to wait 30 days or even 3 days to go through a formal “interactive process” with your employer to decide what is an available accommodation. Besides, your employer has already wrongfully preannounced all such discussion is off the table. Since you are of advanced age, the data shows you are at particularly high risk of morbidity if infected. This implies a lower risk is still intolerable. My recommendation: Get your doctor to recommend an accommodation of either working from home via internet, or taking a leave of absence to re-evaluate the severity of the risk in 30 days. A period of total temporary disability can be in some circumstances a “reasonable” accommodation. But if you just quit without seeking the accommodation and without obtaining a supporting M.D. opinion, you may fail to qualify for Unemployment benefits.

Bottom Line: Your company has its head in the sand. Everyone is at risk unless extraordinary measures are taken. Contrary to popular opinion, it is not survival of the fittest, but the most adaptable, according to Darwin. I don’t know know what level of management threatened your job, but take measures to present your M.D. accommodation request to a Human Resources or higher level manager. Mention the duty to provide a safe workplace in California. Put your request in writing as evidence in the event you are fired. Be aware that at age 74 you may be perceived differently because of age and so accommodations given to others may be denied you in violation of law. Quit only if you are left with no recourse to protect your health and safety.

The Employment Law Attorney Frank Pray [employee-rights-atty.com] is replying to your posted inquiry as a public service. You should not make important decisions based on this courtesy service because the courtesy is not offered as a fully informed legal opinion. This disclaimer also applies to all my blog and website postings at employee-rights-atty.com.