If Your Employer Says You Are an ‘Essential Worker,’ Do You Have to Go to Work? What about Your Health & Safety?

Since Governor Newsom’s March 19, 2020 shelter-in-place order, most Californians have been staying home to protect themselves and others from COVID-19 and to flatten the curve of its rapid spread. But there are exceptions for “essential workers” who supply or support functions critical to public health and safety, the economy, and national security. So, what if you provide services to an essential business? Do you have to go to work? Generally, yes, you must report to work; however, just because you are “essential” does not mean you essentially give up your right to your health and safety in the workplace.

Have You Properly Been Classified as an “Essential Worker”?

To determine whether your job is essential, consult the State Public Health Care Officer’s extensive list of Essential Critical Infrastructure Workers, briefly defined as follows:

  • Healthcare/Public Health Sector, including health care providers, public health workers, caregivers, hospital, veterinary, and laboratory personnel, workers in other medical facilities like blood banks, hospices, and outpatient clinics, those responsible for health care data transmission and storage, and workers involved in the manufacture and distribution of medical equipment, pharmaceuticals, vaccines, personal protective equipment, sanitization and cleaning supplies, and personal care and hygiene products.
  • Emergency Services Sector, including law enforcement, first responders, fire fighters, 911 call center employees, child and adult protective services employees, private security, animal control, and employees needed to maintain essential public works like bridges, water and sewer mains, and traffic lights, and to maintain safety and sanitation in residences such as plumbers, electricians, and exterminators.
  • Food and Agriculture Sector, including workers in retail food, beverage, cannabis, and dietary supplement stores and markets, food banks, pharmacies, restaurants providing carry-out, employees supporting all aspects of food manufacture, supply, processing, packaging, distribution, and transportation, farm, animal agriculture, and forest product workers, and workers essential for government assistance programs.
  • Energy Sector, including workers involved in the production, refining, storage, and distribution of electricity, oil, and natural gas such as utility workers, technicians, and engineers in these segments, call center employees dealing with outages and leaks, and retail gas station and truck stop employees.
  • Water and Wastewater Sector, including all workers needed to operate and maintain drinking water and wastewater/drainage such as at water authorities, treatment facilities, collection facilities, and with chemical disinfectant suppliers.
  • Transportation and Logistics Sector, including all workers needed to support the subsectors of aviation (airlines, helicopters, airports, and landing strips), highway and motor carrier (roadways, bridges, and tunnels), maritime transportation systems (coastline, ports, and waterways), mass transit and passenger rail (buses, trolleys, subways, taxis, and truck drivers), pipeline systems (carrying gases and chemicals), freight rail (railroads), and postal and shipping (mail, courier, and delivery services).
  • Communications and Information Technology Sector, including all workers supporting cable, telephone, and satellite providers, radio, television, and media services, network operations and information technology, cloud computing services, and cybersecurity.
  • Other Community-Based Government Operations and Essential Functions, including public benefit government employees, some court employees, workers supporting schools for the purposes of distance learning and providing school meals, construction workers, commercial retailers that supply essential sectors (such as pet supply, auto supplies and repair, and hardware and home improvement), workers supporting the entertainment industry, laundromat and laundry services, animal care facilities, and hotel workers at hotels used for COVID-19 mitigation.
  • Critical Manufacturing Sector, including all workers necessary for the manufacture of materials and supplies needed for essential sectors such as medical supplies, metals, machinery, electrical equipment, and transportation equipment.
  • Hazardous Materials Sector, including workers at nuclear facilities, handling medical waste, and providing hazardous waste cleanup.
  • Financial Services Sector including all workers needed to process financial transactions and services such as investments, credit and financing, banking and lending, and insurance services, and to provide consumer access to these financial services.
  • Chemical Sector, including all workers involved in the conversion of raw materials and chemicals into industrial and consumer goods such as hand sanitizers, pharmaceuticals, textiles, paper goods, plastic packaging, cleaning and medical solutions, and including those involved in their supply, production, transportation, and facilities operation and maintenance.
  • Defense Industrial Base Sector, including workers required for national security and who work for companies, and their subcontractors, performing under contracts with the Department of Defense such as aerospace, mechanical, and software engineers, manufacturing and production workers, information technology and security personnel, intelligence support, and aircraft and weapon system mechanics.

This list is subject to change by the California Department of Public Health.

There is much less clarity regarding non-essential workers, presumably encompassing any workers who do not neatly fit within the above list. California’s Coronavirus (COVID-19) Response FAQs webpage states that businesses such as dine-in restaurants, bars and nightclubs, entertainment venues, gyms and fitness studios, public events and gatherings, convention centers, and hair and nail salons are closed while the stay-at-home order is in effect. Clothing retailers and department stores are also non-essential as they do not, unlike stores like Walmart and Target, sell food or other essential supplies such as cleaning and personal hygiene products. Ultimately, it is the California Department of Public Health’s call.

If My Job Falls Within a Critical Sector, Do I Have to Report to Work? What About My Health and Safety?

If your job falls within one of the enumerated categories, you will generally be required to report to work – that is, assuming you have not been impacted by COVID-19 and have not opted to take Paid Sick Leave or Paid Family Leave, as discussed in our March 19, 2020 blog, or any other leave to which you are entitled. Your employer, however, is required under the Division of Occupational Safety and Health (“Cal/OSHA”) regulations to protect you from exposure to COVID-19.

To start, there are numerous disease-prevention protections already required of employers such as providing washing facilities that have an adequate supply of suitable cleansing agents, water, and single-use towels or blowers, having an Injury and Illness Prevention Program (“IIPP”) to protect employees from workplace hazards including infectious diseases, and providing personal protective equipment if an infectious disease is identified as a workplace hazard. Because COVID-19 is so widespread, most workplaces will have to consider it a hazard.

For workers in the Healthcare/Public Health Sector, correctional facilities, homeless shelters, and drug treatment programs, your employer is likely required under Cal/OSHA's Aerosol Transmissible Diseases (“ATD”) standard to reduce your risk of infection through screening procedures, implementation of an exposure control and/or biosafety plan, taking isolation precautions, and, in some cases, requiring N95 respirators or air-purifying respirators. Consult Cal/OSHA’s Safety & Health Fact Sheet regarding ATDs and The California Workplace Guide to ATDs for more information.

For other sectors not subject to ATD standards, Cal/OSHA has released Interim Guidelines for General Industry with recommended precautions (from the Centers for Disease Control and Prevention [“CDC”]).

Some of these Cal/OSHA guidelines are as follows:

  • Actively encouraging sick employees to stay home and immediately sending home any employees with acute respiratory illness symptoms;
  • Providing information and training to employees on cough and sneeze etiquette, hand hygiene, avoiding close contact with sick persons, avoiding touching eyes, nose, and mouth with unwashed hands, and avoiding sharing personal items with co-workers;
  • Providing tissues, no-touch disposal trash cans, and hand sanitizer for use by employees;
  • Performing routine environmental cleaning of shared workplace equipment and furniture; and
  • Advising employees to check CDC’s Traveler’s Health Notices prior to travel.

Cal/OSHA has also released more specific guidance for Agricultural Employees (also in Spanish), Childcare Workers, and Skilled Nursing and Long-Term Care Facilities.

What Can I Do if Mu Employer is Failing to Take Appropriate Precautions to Protect
Me from Exposure to COVID-19?

If you are an essential employee and your employer is not taking proper precautions, if you have been exposed to COVID-19 at work because of your employer’s failures, or if you believe your employer is wrongfully claiming it is an essential business, you may be able to hold them legally accountable for violating your rights.

The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law.

Contact us online or call (619) 468-5222 to learn more about how we may be able to support your claim.

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