What are your rights in the workplace when it comes to COVID-19? 11 Investigates finds out

PITTSBURGH — Workers at big companies and small, government buildings, and nonprofits have contacted 11 Investigates, concerned that their employers are not following proper COVID-19 precautions. They are worried about their health and safety, and that of their families and co-workers. We talked with several employees on and off the record, reviewed hundreds of complaints from the Occupational Safety and Health Administration (OSHA), and took their chief concerns to an employment attorney to find out what your rights are in the workplace when it comes to COVID-19.

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Notifying employees of COVID-19 cases

“I’m pretty angry. I’m not going to sugarcoat it,” said Sara Deliman, team leader at the Goodwill store in Uniontown.

Deliman became upset when a co-worker tested positive for COVID-19, but says she was instructed not to tell others, even though they worked closely with the person who tested positive.

“Her rapid test came back positive, and I had to fill out a COVID-19 incident report, but I was told not to say a word,” she said.

Frustrating her even more, Deliman says she also learned another co-worker tested positive weeks earlier, but she was never informed.

“They didn’t notify me about my cashier, and I was literally working right next to her the day before.”

Goodwill of Southwestern Pennsylvania provided this statement in response to our inquiry about the employee’s concerns:

“Goodwill SWPA follows a detailed screening and review process whenever a possible exposure or COVID symptom is reported. We treat each situation with the highest possible levels of care, responsibility, and diligence. In these situations, we follow our protocols based on guidelines of the CDC and other health authorities. The well-being and safety of our team members and of the people we serve is our greatest concern. We will continue to work with anyone on our team who has concerns for safety. — David Tobczyk, VP Marketing & Development”

Not Enforcing Safety Precautions

“It’s just scary and it’s frustrating,” Lisa Salicrup told us.

She’s a dispatcher at the FedEx North Pittsburgh station in Zelienople, and was one of a half dozen employees and former employees at the facility who contacted 11 Investigates about concerns.

“They don’t wear masks in the office, they don’t enforce drivers wearing masks,” she said. “There’s no six-feet social distancing, even in the breakrooms. Everyone’s just clustered together.”

Salicrup says she was especially concerned because she has asthma, a preexisting condition that could lead to a more severe case of COVID-19 if she becomes infected.

Salicrup sent 11 investigates pictures she took at work to show her concerns, including employees not wearing masks, food left out in the breakroom for all to touch, and empty sanitization stations that were supposed to be stocked with masks and hand sanitizer.

“It’s definitely a safety concern, not only for me, but my co-workers and the customers,” she said.

FedEx did make some improvements after we first contacted the company, saying in a statement:

“FedEx Ground takes this situation very seriously and remains committed to following the latest recommended guidance regarding the health and safety of our team members and other visitors to our facilities. We will continue to encourage our team members to raise any concerns in this regard with management, human resources, security, the legal department, or through our anonymous and confidential FedEx Alert Line. — Meredith Miller, FedEx Ground, Manager of External Communications”

Doctor’s Order to Quarantine

“It has cost me everything,” said Stephen Dusenberry, a senior account manager at a small social media company in Beaver County.

Dusenberry says he was fired after refusing to come into the office after getting a doctor’s order to quarantine for 10 days, after a possible exposure to COVID-19.

He showed us several text messages in which supervisors appear to pressure him to come back to work, and he explains that he is not comfortable going against his doctor’s orders.

In one text, a supervisor writes, “If you can’t show up then Mike wants me to start filling your shifts. I don’t want to have to do that because I think you’re great Stephen but I feel this COVID thing is being milked.”

“I certainly wasn’t milking it!” Dusenberry said, frustrated. “I lost my job. I lost my livelihood. I lost my will to wake up sometimes, all because I was following the rules of the CDC.”

Under the Families First Coronavirus Response Act or FFCRA, workers were protected from retaliation through the end of last year if they had a health care order to quarantine.

“They came right out and said, ‘We don’t care what your doctor thinks, basically. We need you to come into the office,’” Dusenberry’s employment lawyer Christine Elzer said.

This week, Dusenberry filed a federal lawsuit against the company, which denied firing him over COVID-19, but declined to offer further comment.

Employee Rights

Elzer says employees do have rights in the workplace when it comes to COVID-19, but she believes they should be stronger.

The FFCRA offered workers protection through the Coronavirus Aid, Relief, and Economic Security (CARES) Act, but it expired at the end of 2020. Even so, she says workplace issues that occurred last year would be covered.

“It requires employers to give paid sick leave to anyone who is advised to self-quarantine by a health care provider for up to 10 days, and not to retaliate against them in any way — to restore their position, not fire them, and not discipline them,” Elzer explained.

The Occupational Safety and Health Act (OSHA) also offers employees some protection. It says workers have rights and employers have a “general duty” to provide “a safe and healthful workplace.”

When it comes to COVID-19, that means employers should follow the Centers for Disease Control and Prevention rules we’ve all come to know so well — disinfecting, mandatory masks, social distancing, requiring employees who test positive to quarantine, contact tracing and notifying those who worked closely with them.

“If those are violated, I think, a strong argument can be made that OSHA’s ‘General Duty’ clause is being violated,” Elzer said.

During an OSHA inspection, if an inspector finds violations of OSHA standards or serious hazards, OSHA may issue citations and penalties. Penalties are based primarily on the severity of the injury or illness that could result from the alleged violation.

A U.S. Department of Labor spokesperson told 11 Investigates, “Employers are and will continue to be responsible for providing a workplace free of known health and safety hazards.”

If you have a disability, and your workplace won’t make reasonable accommodations, you are also protected under the Americans with Disabilities Act.

Besides OSHA, complaints can also be filed with the Pennsylvania Department of Health, the National Labor Relations Board, and the Equal Opportunity Employment Commission.

OSHA Complaints

OSHA has received nearly 15,000 COVID-related workplace complaints since the pandemic began. More than 1,000 of those came from workers in Pennsylvania.

11 Investigates requested data from OSHA on COVID-19-related complaints in Pennsylvania received since the beginning of the pandemic.

Dozens of businesses from the Pittsburgh area and surrounding counties were on the list. It included a wide range of industries, including health care, entertainment, restaurants, government agencies, hotels, retail stories, shipping companies and others.

(**Search through the OSHA data for Pennsylvania below if you’d like to see which companies had complaints filed against them and for what. The list is in alphabetical order by county.)

Chief OSHA Complaints

Chief concerns cited by workers in the OSHA complaints included:

· not enforcing COVID-19 precautions, like mask wearing and social distancing

· lack of proper cleaning and disinfecting

· allowing sick employees to come to work

· not notifying employees who had “close contact” with co-workers who tested positive

Workers not being notified about COVID-19 cases in their workplace is one of the biggest complaints raised by employees who talked with 11 Investigates, like Sara Deliman at Goodwill.

“I feel it’s incredibly wrong. They deserve to know!” Deliman said.

CDC guidelines say employees who’ve been in close contact with a co-worker who tests positive should be notified:

“Inform employees of their possible close contact (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) with someone with confirmed or suspected sars-cov-2 infection in the workplace, but maintain confidentiality as required by the Americans with Disabilities act (ADA). — CDC Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19)”

Goodwill, like many other companies, says when it comes to notifying employees about COVID-19 cases, it relies upon names provided by the employee who tests positive.

Deliman points out that can leave room for error.

“They didn’t notify me about my cashier, and I was literally working right next to her the day before,” Deliman said.

Companies do have privacy concerns when it comes to releasing medical information on employees, so that creates complications. Many businesses choose to notify employees they believe were exposed, but don’t say by whom.

FedEx told 11 Investigates it follows this protocol when there is a confirmed case in one of its facilities:

· Informing team members, service providers and vendors in the building;

· Identifying anyone who has had close contact with the infected individual to ensure they are taking the recommended precautionary measures;

· Thoroughly sanitizing potentially affected areas of the facility.

FedEx dispatcher Salicrup, however, insisted workers are not always notified when employees test positive.

“They don’t tell anybody,” she said. “They just keep it under wraps and say a person is out because they’re not feeling well.”

The OSHA data showed FedEx was the subject of multiple complaints in Pennsylvania, with 15 statewide — including two from the Zelienople facility where Salicrup works.

“For a big company like FedEx, I feel like they should definitely be doing more,” she said.

What to do?

If you complain about concerns to your employer and they do nothing, you do have some recourse.

“You should take it to OSHA or to the state Secretary of Health. You can file a complaint with one of those,” Attorney Elzer recommended.

Filing a formal complaint gives you legal protection from retaliation. She also says there is strength in numbers if you file with co-workers.

“Then you’re engaging in what they call concerted action,” she said, “which is protected under the National Labor Relations Act, if two or more employees try to get together to improve working conditions.”

If you’re fired, you can pursue legal action for damages and back pay.

“They’re not really going to owe anything to the employee unless they actually harm the employee,” Elzer explained.

That’s the route Stephen Dusenberry has chosen, but it has not been easy.

“It’s been a struggle to make it through each day,” he said. “You lose your job, and all of a sudden your world collapses around you, because it doesn’t stop the bill collectors from calling.”

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