We previously offered a post by Arizona employment lawyer, Denise Blommel. Since that post (which you’ll note has now been deleted), there have been changes in the law. Here is Denise’s updated version, for which we, at Practice 2.0, are grateful.
My last blogpost was written in March, 2020, before the March 30 Stay Home, Stay Healthy, Stay Connected Executive Order for April and extension through May 15, and before Arizona had over 11,000 COVID-19 cases with close to 600 deaths. As of this writing, the United States has lost over 70,000 lives to COVID-19. The national economy is in shambles with unemployment levels almost reaching Great Depression levels.
Governor Ducey’s stay-home order affected non-essential businesses the most. Even essential businesses had to furlough or lay off workers. Arizona’s unemployment insurance claims swiftly skyrocketed to over half a million. Arizona’s tourism, sporting, hospitality, and entertainment industries are on life support. It seems like all of 2020 has been cancelled.
Arizona employers, including law firms, have had to cope with shifting CDC, EEOC, OSHA, and Presidential guidelines, as well as multiple gubernatorial Executive Orders since my last blogpost. Congress has passed several laws, businesses have scurried to secure SBA loans, IRS guidance has been a moving target, and the U.S. Department of Labor has worked its own overtime by issuing more and more FAQS on the new laws. Besides social distancing, cleaning surfaces, face coverings, and frequent handwashing, employers have to ascertain their safety and health risks from an engineering and administrative viewpoint before instituting protocols. Every employer in Arizona, large and small, owes a duty to every employee to provide a safe workplace under Arizona law.
Many employers worry about their employees contracting COVID-19 on the job. If that were to occur, workers’ compensation would be the exclusive remedy, if the employee required medical care. It is imperative for employers to correctly post their workplaces with the workers’ compensation poster to avoid any type of claim that the injured worker did not know she had the right to reject coverage prior to the injury, thus retaining the right to sue the employer. Of course, general liability carriers need to be consulted about customers or clients contracting COVID-19.
Workers also have the right to refuse to work under certain limited circumstances under both Arizona OSHA law and federal labor relations law. Simply being “scared to come to work” is not enough. Workers need to jump through the requisite “hoops” imposed by both laws before staying home when called to work.
The huge issue facing Arizona employers now is the reopening of businesses. This is not a simple matter. Perhaps the best guide for employers is provided by federal OSHA on the Internet at https://www.osha.gov/Publications/OSHA3990.pdf. The EEOC has also helped with guidance about hiring and accommodation practices for employers of 15 or more at https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act. This guidance deals with taking employees’ temperature and other proactive measures to deal with COVID-19, which is a direct threat to employees.
Arizona historically has many low-wage workers. With the $600.00 extra per week supplied by the federal government to unemployment insurance recipients until July 31, 2020, many of these workers will not return to any job paying less than $15.00 per hour. Employers who plan to reopen are already dealing with no job applicants for low wage positions.
I am interested in your thoughts about the effect COVID-19 has had upon the workplace. My belief is that remote working will become a new norm, instead of an infrequent job benefit or ADA accommodation. I also wonder about the future of crowded events (Cardinals, concerts, Spring Training). What will Arizona’s hospitality industry look like a year from now? Will individuals continue to work for low wages, especially given that many low-wage jobs (grocery and pharmacy clerks, cleaning staff) have been literally lifesaving during this pandemic? Email me at firstname.lastname@example.org with your input.
Stay safe, stay strong. We will get through this.