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Q&A: What are Maryland workers’ rights, responsibilities in the coronavirus pandemic?

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As the new coronavirus pandemic shifts the way people move through the world, some Marylanders are asking what their rights are in the workplace.

Numerous questions about sick leave, social distancing in the office and employers’ responsibility have flooded social media this week as the COVID-19 outbreak spreads. Many workers’ rights are defined under both state and federal law.

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Here are a few questions from Marylanders about workers’ rights and answers from the experts:

Can I force social distancing procedures to be implemented at work?

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Kathleen Cahill, a Baltimore-based employment attorney, said that while workers may want managers to implement social distancing procedures, such as keeping at least 6 feet between people, there isn’t a legal recourse to force employers to require them.

“People without disabilities generally don’t have rights about workplace policies and practices,” Cahill said.

She added that workers can ask the company to make “reasonable accommodations” under the Americans with Disabilities Act, saying that clinical anxiety is a covered condition and anxiety spurred by a lack of safe workplace practices could be a valid claim under the ADA.

“If somebody has anxiety about an epidemic and wants to ask for reasonable accommodations, that could be a reasonably effective approach,” Cahill said. “Social distancing could be something they ask as a reasonable accommodation.”

She said, in those cases, employees should ask the employer for a meeting to discuss those accommodations with a human relations representative to see whether they can be implemented without impugning “undue hardship” on the company.

If the company then doesn’t implement those accommodations, Cahill said, the person may have a claim for unemployment benefits if they quit their job.

What happens if a co-worker tests positive? Do I have the right to know who it was?

Joel Smith, an attorney for AFSCME Local 3 which represents essential workers such as corrections officers and supermarket employees, said that employees should be told whether a co-worker tests positive for the coronavirus, given the contagious nature of the disease.

“Certainly they have a right to know if the employer knows,” Smith said.

But he said it still isn’t clear whether companies are required to share the identity of who contracted the virus with other employees, saying there’s a difference between telling co-workers who are exposed to that person on a daily basis versus those who may only have had passing exposure, if that.

“We haven’t defined that obligation,” Smith said.

Should I file a workers’ compensation claim if I get the coronavirus while working?

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Cahill said those who go to work and later test positive for COVID-19 may have a right to workers’ compensation.

She said if “an employee without a disability makes complaints” about company policy regarding a lack of social distancing in line with federal guidelines and the employer refuses to implement them, they’d have at least a decent workers’ compensation claim.

Could I file for unemployment if my job won’t implement social distancing?

While Maryland is usually a state where if an employee leaves, they forfeit their right to collect unemployment benefits, Cahill said those who unsuccessfully try to correct policies at work to implement social distancing may have claims to unemployment benefits.

Cahill and Smith said it’d be hard to define the circumstances that would lead to a successful case, as they’re evaluated on case-by-case bases.

However, Cahill said “resignation for good cause can be an exception" to the law and those who can prove they tried to implement reasonably safe practices at work during a pandemic may have a claim for unemployment benefits if they quit after their employer refused to implement those practices.

The two attorneys also cautioned that the standard might be determined in the coming weeks as the coronavirus outbreak continues to spread and employees and employers are increasingly left to deal with the fallout.

“Where that line will be in this day and age ... I can’t predict that,” Cahill said.

Said Smith: “I wouldn’t offer advice on that because it’s so fact-based and so idiosyncratic. We haven’t seen the state ... come forward yet” and offer guidance.

What if my employer does not provide sick time?

Matt Helminiak, commissioner of labor and industry for the Maryland Department of Labor, has oversight of issues related to earned sick and safe leave in the state.

Helminiak said most employees in the state are eligible for some kind of leave under the Maryland Healthy Working Families Act of 2018.

Under the law, an employer with more than 15 employees is required to offer paid leave. Any employer with fewer than 15 employees must provide one hour of unpaid leave for every 30 hours worked, with the ability to accrue a maximum of 40 hours of sick leave in a year, Helminiak said.

An employer does not have to provide additional paid sick leave above what is required by the law.

The law does not cover some employees who perform work under a contract of hire, those who are under the age of 18 before the beginning of the year, those who are employed in the agricultural sector on an agricultural operation and some people who are employed by a temporary services agency or employment agency to provide temporary or part-time staffing services.

Marylanders with questions about the exemptions are asked to email ssl.assistance@maryland.gov.

Helminiak also said that the federal Families First Coronavirus Response Act, which President Donald Trump signed into law last week, will temporarily expand some requirements related to sick leave or family and medical leave related to COVID-19.

The U.S. Department of Labor’s Wage and Hour Division has published its first round of guidance on the federal law, including a fact sheet for employees, for employers and a General Q&A.

What should a person do if they do not have access to masks while working at a health care facility?

The answer to this question can be complicated because there are many nonhealth care-related jobs that may require the use of a face mask, Helminiak said.

Marylanders who work in the health care field and are in direct contact with COVID-19 patients should be provided with masks, he said. However, there is a nationwide shortage of face masks, respirators and other medical supplies.

Some residents in the Baltimore area have taken to sewing fabric face masks for health care professionals who do not have their own at this time.

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The law does not require an employer to provide face masks to a staffer who does not usually require one and isn’t in direct contact with a patient, Helminiak said.

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