San Francisco Chronicle - (Sunday)
Workers fear virus if they return, firing if they don’t
Companies are reopening in California, and employees are returning to work.
But with the global pandemic still raging and cases of coronavirus infection rising disturbingly in San Francisco and other parts of the state, many are worried about exposure on the job.
For Emily Hering, a parttime barista at Philz Coffee in Palo Alto, a big fear is that she might get laid off for declining to return.
She has a medical condition that she says makes her more vulnerable to a bad bout of COVID19. But Philz — which has reopened many locations
— wants her back, she said, after three months on furlough. The company sent her paperwork to determine whether she qualifies for leave under federal disability and labor laws.
In recent weeks, Hering said, company human resources representatives told her in phone calls she can “either return to work or voluntarily resign.”
Philz declined a request for comment.
Carlos Gabriel, a labor organizer who has been vocal about working conditions at Tesla’s Fremont factory, had a similar concern. He said he received a termination notice this month from the electric carmaker over his refusal to return to work. He had been on the production line in March before authorities forced the factory to close, and declined to return to work after the plant reopened against county health orders last month. Reports subsequently emerged of workers testing positive for the coronavirus at the reopened plant.
Tesla did not respond to a request for comment.
The situation is almost certainly becoming more common across California. After months of layoffs and closures, nine of the 11 major industries in the state added workers last month, according to state Employment Development Department data. Counties have avidly pursued permission to open up more sectors of their local economies despite rising case numbers. (A notable exception: San Francisco hit the brakes Friday on a planned reopening that would have allowed bars, barbershops and nail salons to resume operations.)
Federal and California laws do not provide much of a backstop for worried employees, experts said. Indeed, employees facing a return to work have fewer protections than those who are already sick.
“An employee can refuse to return to work if it presents an imminent danger,” according to Michael Warren, head of the labor and employment practice at the law firm McManis Faulkner. But that can be hard to establish, he added. “Employers whose workforce can’t work remotely and who are taking the recommended precautions ... can treat an employee’s refusal to return to work as a refusal to work,” and terminate them, according to Martha Doty, a labor and employment attorney at the Alston & Bird law firm.
California employees who refuse to return to work also risk losing unemployment insurance, because payments can be contingent on whether someone is offered suitable work. But what constitutes suitable work during the pandemic is up for interpretation.
California’s Department of Industrial Relations has released detailed guidance about precautions companies should take around cleaning and virus prevention. Linda Delp, a UCLA professor and director of the school’s Labor Occupational Safety and Health Program, said the department is also requiring maskwearing and other virusprevention precautions. Gov. Gavin Newsom has mandated face coverings statewide too.
Delp said local public health department orders also have the force of law, but it is not always possible enforce them to the letter.
Complaints have flooded in to Cal/OSHA, the state workplace safety regulator, which logged 2,800 coronavirus-related complaints between Feb. 1 and June 15.
The agency has resolved more than 1,500 of those complaints remotely, and pursued 164 physical inspections in response to complaints and reports of illnesses, according to an email from Cal/OSHA spokesman Frank Polizzi.
Hering, the parttime Philz worker, filed one of those complaints in May to Cal/OSHA saying that Philz is not enforcing rules requiring employees to wear masks and stay apart from one another. The chain closed down stores on March 17 as a safety measure — as a food business, it could have chosen to stay open — and reopened most locations on April 8.
According to Philz’ website, its onsite precautions include limiting the number of workers on a shift, providing masks and various sanitation measures.
Part of the challenge is that the coronavirus has become a commonplace danger. Cal/ OSHA does consider COVID19 to be a workplace hazard because it is so widespread and employers are required to take steps to protect workers from the disease, according to Polizzi. Employers are required to record and report COVID19 cases and other illnesses under recordkeeping laws, Polizzi said.
Some businesses operating throughout the pandemic have given workers flexibility to take time off if they are worried about the virus.
San Francisco grocery delivery company Imperfect Foods said it does not fire employees who refuse to work because of virus fears, according to answers to emailed questions provided by CEO Philip Behn. The company reported two positive coronavirus tests in its San Francisco facility last month and said its policy is to provide benefits, including medical care and up to 26 weeks of paid leave, for infected employees, according to Behn.
For those who aren’t sick but are worried about getting the coronavirus, the company allows employees to take an additional two weeks of sick leave to protect themselves or their coworkers at their discretion.
But for many workers, the pandemic remains a struggle.
Gabriel, the Tesla worker, received an email, reviewed by The Chronicle, last month from Tesla’s acting human resources director confirming Gabriel would be allowed to remain at home unpaid without being penalized. But this month he received an email saying that because he had not responded to more recent emails from midMay regarding whether he would return to work, he would no longer have a job at Tesla as of June 19. Gabriel said that he had previously notified Tesla of his unwillingness to return to the factory during the pandemic.
“Nothing has changed from my end,” he said told Tesla in an email this month.