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Overlooked, Underpaid California Workers Face Dire Coronavirus Risk

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Many look to Cal/OSHA for guidance on employers furnishing a "place of employment that is safe and healthful."

Sacramento, CAOn March 19, Gov. Gavin Newsom ordered all Californians to stay home except for workers essential to health care, public safety, food, agriculture and media. Those who can work remotely may be juggling work and children. Laid off and furloughed workers are looking at reduced paychecks, even with the wage and benefit protections of federal and California labor law. Independent contractors and the self-employed may be looking at even worse circumstances.

But what about those who are still working – not just the doctors and nurses, but the med techs, grocery clerks, e-commerce warehouse workers, security guards and home health aides? What about anyone whose boss insists that they show up for work or lose full-time status and health insurance? This latter group of workers may also be facing serious health risks; yet, unlike the doctors and nurses, they are almost invisible to the public at large.

The usual bureaucratic process designed to remedy workplace safety issues seems too slow for the task at hand. Workers who are represented by unions, including the UFCW, may have other avenues of recourse. It is early yet for lawsuits under the provisions of California occupational safety and health laws. But these, too, will surely come.
 

Cal/OSHA


Section 6400 of the California Labor Code provides that every "employer shall furnish employment and a place of employment that are safe and healthful." Among other specific obligations, employers must:
 
  • Establish, implement and maintain an effective injury and illness prevention program (IIPP);
  • Train employees;
  • Report and keep records of any serious illness or death; and
  • Prevent discrimination against employees who exercise their rights under Cal/OSHA

Employees have corresponding rights to:
 
  • Request action from their employers to correct hazards or violations;
  • Request investigation of possible workplace health hazards;
  • File a complaint with Cal/OSHA if the worker believes that workplace hazards exist; and
  • File a Cal/OSHA discrimination or whistleblower complaint.

Some California workplaces are subject to Cal/OSHA inspections on a pre-arranged basis, but the bulk of inspection activity is triggered either by an event, such as an industrial accident, or a worker complaint. Awkwardly, the enforcement of California worker safety laws largely depends on the vigilance of those whose health and economic welfare are most at risk.
 

Right to refuse to work


Section 6311 of the California Labor Code permits employees to refuse to work because of an unsafe workplace condition if and only if:
  • The condition violates a provision of the Labor Code or a safety order; and
  • The condition creates a real and apparent hazard to the worker or fellow workers.
For a health hazard, there must be a reasonable expectation that toxic substances are present and exposure to them will shorten life or cause significant reduction in physical or mental efficiency. In addition, the individual refusing to work must believe that death or serious physical harm could occur within a short time. The hazard must also be apparent, which may be a hurdle for a danger that has been described as an “invisible enemy.” The imminent hazard standard is difficult to meet and more appropriate to the risk of industrial accident than a highly contagious disease, but it may be an option for workers in dangerous situations.
 

How to file a complaint


In the usual course of business, workers who believe that they are being asked to work in unsafe conditions are advised to move through an orderly process that begins with filing an internal complaint before they turn to a Cal/OSHA district office. There are a variety of ways to file a complaint, including online and telephone options.

Workers who believe that their employer has retaliated against them because of a Cal/OSHA complaint should contact the nearest office of the Division of Labor Standards Enforcement. Many of those workers are now also working remotely.


Protection for whistleblowers


Labor Code section 6310 provides that employers may not discriminate against any employee because the employee has filed a Cal/OSHA complaint. This includes firing, demotion, transfer, layoff, losing opportunity for overtime or promotion, exclusion from normal overtime work, assignment to an undesirable shift, denial of benefits such as sick leave or vacation time, blacklisting with other employers, taking away company housing, damaging credit at financial institutions and reducing pay or hours.

Workers who believe that their employer has retaliated against them because of a Cal/OSHA complaint should contact the nearest office of the Division of Labor Standards Enforcement. Many of those workers are now also working remotely.

Given the urgent nature of this health risk, and the likely slowing of an already ponderous process, workers may wish to reach out directly to experienced legal counsel. This is especially true if they have reason to believe that workplace conditions expose them to imminent serious hazards.

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