Covid in the Workplace
Since the beginning of the COVID-19 pandemic, Hertz Legal, Employment attorneys for Employers serving NY< NJ and CT has been flooded with inquiries from Employers and Employees alike regarding Employer obligations and Employees rights as they relate to Covid in the Workplace.
What would normally be an invasion of the employee’s right to privacy has been overshadowed by COVID and the obligation of employers to maintain a safe workplace free from known hazards or threat of death.
An example: A client of Hertz Legal, employment attorneys for employers serving NY<NJ and CT wanted to know if he could ask their employee where they were going on summer vacation. They were concerned that the employee might be going to a COVID “hotspot.” Typically, this is not the type of question an employer can or should be able to ask their employees.
This employer wanted to know if the employee was visiting a COVID “hot spot” as they were referred to in the summer of 2020. Hertz Legal, Employment Lawyer serving NY, NJ and CT employers determined that while normally this type of question would be inappropriate for an employer to inquire of their employees, under the circumstances, given the global pandemic, the employer had a right to ask this question. The rationale for this decision is that
Under the Occupational Safety and Health Administration, (OSHA,) Employers have an obligation to maintain a safe work environment, “free from serious recognized hazards” for their employees. OSHA - Employer Responsibilities In pursuit of that obligation, Employers may inquire as to the location and details of employee’s vacations, due to Covid concerns. While employees may feel that this is an invasion of and violation of their privacy rights, it is not unlawful. For instance, should an employee who works in close proximity to others, particularly in the fields of retail & wholesale, travel to a known Covid Hotspot, that employee jeopardizes the health and safety of all its co-workers, customers, clients, third party vendors and other visitors to the workplace.
Courts have consistently upheld that this is a valid reason to overrule the Employees’ right to privacy, because the duty and obligation of the Employer to maintain a safe work environment, free from risk of serious injury or death outweighs the employee’s right.
Another client of Hertz Legal, Employment attorneys for employers serving NY NJ and CT inquired whether the employer could legally mandate that all employees returning to work be vaccinated against COVID 19. While there are some exemptions, Hertz Legal, PC determined that in fact that Employer may mandate vaccinations, as the risk of death or serious injury, coupled with the Employers legal obligation to maintain a safe work environment free from risk of death or serious injury outweighed the employee’s rights under OSHA.