Returning to work during COVID-19

Thursday, June 4, 2020

More than 20 million Americans are now out of work as a result of the COVID-19 pandemic, the largest unemployment number since the Great Depression.

Many of those who have remained employed and working from home have indicated they are either leery of or not in a rush for a return to the office. That goes double for some who are receiving more in unemployment than their regular wages. The White House and Congress are even talking about a "return to work" bonus to incentivize people to return to their desks.

People want to return to their normal lives and contribute to the economy, but they’re not quite ready to take that first step. So what’s it going to take?

Michael Selmi, a Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University, has more insight into the issue than most. A leading voice in employment law, Selmi has worked on a number of Supreme Court cases and is a frequent commentator for media outlets such as the New York Times, Washington Post, Wall Street Journal and NPR.

ASU Now spoke to Selmi about the reopening of America’s workplace and how it might not be as easy as it sounds.

Man in silver hair and glasses

Michael Selmi 

Question: Have you ever seen anything like today’s current employment situation in your lifetime?

Answer: I have certainly not. While we have had serious economic disruptions in the recent past, including mass layoffs, the current situation has the additional overlay of a health pandemic. I think that makes it a very different situation.

Q: For the person who’s been recently unemployed because of COVID-19, what do they have ahead of them?

A: That turns out to be a more difficult question than it might appear because circumstances will vary a lot. Congress has provided a $600 supplement payment that is set to expire at the end of July. I think that has helped people survive their job loss but without that supplemental pay, many people will suffer greater economic pain, given that many job losses are likely to be permanent. There is also the issue of individuals who have a fear of returning to work because of health concerns, and what that will mean for extending their unemployment benefits. This will likely depend on whether the individual has good cause to fear returning, and that in turn is likely to depend on the particular circumstances of the individual and the particular condition of the workplace. 

Q: Employers seemed to be concerned if they allow workers to come back, they’ve opened themselves to liability. How will they be protected from lawsuits?

A: There’s federal legislation under consideration to provide employers immunity from liability in some circumstances. I don't know if that that legislation will pass, but there could also be state legislation along those lines. But with respect to worker injuries in the workplace, in general, employees are precluded from suing employers for injuries or illnesses that occur in the workplace. Instead, they're relegated to filing a workers’ compensation claim, and workers’ compensation provides more limited benefits to employees than a tort claim or a lawsuit might. There’s also going to be, even in the context of workers’ compensation, the question of whether an employee acquired the illness in the workplace. If an employer were to challenge a workers’ compensation claim, that issue would be difficult.

A number of states, but not Arizona, have passed legislation to say that if a worker acquires COVID-19, they’ll be presumptively entitled to workers’ compensation benefits. But most people who do get COVID-19 recover in the span of a couple of weeks. And workers’ compensation is really not designed to provide benefits for short-term illnesses. The Family Medical Leave Act would provide some benefits. But that is generally unpaid leave, although recent federal legislation provides for up to two weeks of paid leave for employees who have contracted COVID-19 or have been ordered to quarantine due to exposure and who work for employers with fewer than 500 employees.

Q: Should employers be testing employees at work and how do they take into account individuals with disabilities?

A: There are a lot of different issues in terms of what employers can do to try and ensure a safe workplace, and those questions are starting to come up now. The federal government has provided pretty limited guidance in terms of what employers can and can't do or rather should and shouldn't do, is probably more accurate. The Equal Employment Opportunity Commission has said it's permissible, in the context of disability law, to take temperatures and generally to test individuals for COVID-19, even though the disabilities law would generally restrict the use of medical tests. I don't think too many employers are likely to be sued for testing. They could be sued if they released the information as to who tested positive. That would likely be a privacy violation, and a potential violation under the American Disabilities Act.

Q: What are some trends you see looking ahead?

A: The issue we’re all talking about and will be for a long time is how are employers and employees going to adapt moving forward? It's one thing to get people back to work, but it's another to try and figure out how to deal with this virus in a potentially long-term setting. In a lot of workplaces, a question will be whether remote work is going to become more standard. Facebook and Google have said that their employees can continue working at home through the year. Facebook and Twitter are creating the options for permanent remote work as well. Many employers resisted extensive work at home for employees for years. Right now there's certainly a lot more going on. It seems that in many workplaces they're finding that it's not so disruptive and that people are being productive. I believe that will be a long-term change to the workplace.