Complying with Employee Safety Requirements in California During the COVID-19 Crisis
All across the United States in this time of the COVID-19 crisis, employees continuing to work in their places of employment are dealing with the challenging circumstances of working during a pandemic while trying to ensure their health and safety are protected. From nurses at UCLA Medical Center in Santa Monica and Kaiser in the Bay Area and Fresno demonstrating over the lack of Personal Protective Equipment (“PPE”), like N95 masks and other protective gear, to food service workers at Amazon, Whole Foods, McDonald’s and other fast-food chains protesting over not having masks, gloves, or adequate sanitizing equipment, employees are getting fed up with their employers not taking their safety and health seriously, and rightfully so.
In California, employers have an obligation to make sure their employees are provided a safe work environment, including providing necessary safety equipment. California law broadly provides that employers “shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Cal. Labor Code § 6400. Cal. Labor Code § 6401 goes further to require all employers to “furnish and use safety devices and safeguards…which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” (emphasis added). These safeguards that employers are required to take “shall be given broad interpretation so as to include any practicable method of mitigating or preventing a specific danger…” Cal. Labor Code § 6306(b) (emphasis added).
There are reports across the country that employees have had to purchase their own PPE in order to be able to perform their work in a safe manner; PPE their employer would not have provided to them otherwise. The California Occupational Safety and Health Act (“Cal/OSHA”) was enacted to assure employees in California are working in safe and healthy working conditions. Cal. Labor Code § 6300, et. seq. Cal/OSHA requires that employers pay for PPE and can’t require workers to provide their own; but even when a worker does provide their own PPE, the employer must ensure that the equipment is adequate to protect the worker from hazards in the workplace. An employer will also have to reimburse its workers for their purchase of equipment they buy themselves for required use in the workplace. Some examples of PPE that employers must pay for include eye protection, goggles, and face shields if it will protect the life, safety and health of their employees. In this time of the COVID-19 epidemic, employees are putting themselves at risk to perform their jobs and serve their communities, so protective items such as hand sanitizer and proper cleaning facilities can be crucial in terms of minimizing the risk of getting the disease.
Equally concerning to employees during this pandemic is their fear of complaining about their right to continue working in a safe and healthful environment and not facing retaliation for such complaints. While they have been reinstated since, at least 10 nurses at Providence Saint John’s Health Center in Santa Monica were suspended for demanding protective respirator masks and telling their managers they would not enter COVID-19 patient rooms without the masks, as the N95 masks they were requesting filter out approximately 95% of airborne particles; as opposed to the other types of masks they were using that had much less effective results.
The nurses were within their legal rights to complain to their supervisors about this failure to be provided with adequate PPE. Cal. Labor Code § 6311 allows an employee to refuse to perform unsafe work as long as it is hazardous enough that any reasonable person would think that his or her health or safety would be in danger by doing the work, after informing their supervisors about the unsafe conditions and giving the company a chance to correct it. Further, California law prohibits employers from retaliating against employees for reporting or complaining about safety and health regulations the employer is supposed to comply with. For example, under Cal. Labor Code §§ 1102.5 and 6310(a), an employee cannot be discriminated against for making oral or written complaints to a government agency or someone with authority over them regarding their legal safety and health rights. Cal. Health and Safety Code § 1278.5 further prohibits retaliation against health care whistleblowers.
If you have had to continue working in your place of employment during the COVID-19 crisis and your employer is not providing you with the proper safety equipment or environment needed in order for you to perform your job safely or is not taking reasonably necessary steps to protect its employees, you should consult with an attorney.
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