Sarah Nichols | Q&A with an Employment Lawyer About Workplace Rights During COVID-19

Sarah Nichols is an attorney with more than 20 years of experience in HR and employment law, and she is the Founder of Nichols Law PC. She has spent years representing Fortune 100 companies but she has since pivoted and now represents employees who have experienced discrimination, harassment, or retaliation by their employers. 

Sarah is also the host of the Women’s Advocate Podcast. She is a skilled public speaker, author, coach and HR expert. She has taught at both Berkeley and Hastings Law Schools, and is a frequent speaker for associations as well as private employers. She graduated from the University of Sydney with a Bachelor of Laws and Economics.

In this episode, John Corcoran shares a Q&A session he had with Sarah Nichols about issues related to COVID-19 and the workplace rights of employees. They talk about how to determine if a workplace is safe to come back to as COVID-19 continues to sweep through the country, the rights of employees working in the office or at home, the responsibilities of employers and some legal issues related to safety and employment.

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Here’s a Glimpse of What You’ll Learn:

  • Does an employee have a right to work from home if they don’t feel safe working in the office?
  • What employers should do to enable their employees to work from home
  • Obligations employers have in providing safety equipment in the workplace
  • Sarah talks about employees being sent home for having COVID-19 symptoms, being forced to take sick leave, and having their temperatures taken
  • Questions employers are entitled to ask their employees and what they should not ask
  • Are doctors’ notes required to go back to work?
  • Sarah talks about mental health issues in the workplace and the kinds of accommodations and compensations employers can provide their employees
  • Can employers reveal their employees’ personal medical information and can they fire such employees?

Resources Mentioned:

Sponsor: Rise25

Today’s episode is sponsored by Rise25 Media, where our mission is to connect you with your best referral partners, clients, and strategic partners. We do this through our done for you podcast solution and content marketing. 

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Episode Transcript

Intro  0:10  

Welcome to the Revolution, the Smart Business Revolution podcast where we ask today’s most successful entrepreneurs to share the tools and strategies they use to build relationships and connections to grow their revenue. Now, your host for the revolution, John Corcoran.

 

John Corcoran  0:40  

Hey, everybody, John here, and what you’re about to listen to is an interview that we recorded for a new show that we’re publishing through Rise25. It’s called The Women’s Advocate with Sarah Nichols. Now, the reason I wanted to share it with my audience here is because Sarah is an amazing attorney who is advising In a lot of employees, and a lot of companies on issues related to COVID-19, including issues related to safety and legal issues having to do with what an employer can and can’t do for employees, requiring them to, for example, get their temperature taken in order to come to work or stay away from work if they have a temperature, these types of issues that are coming up, so I wanted to share it with you all so that you could have access to that information as well. So, here is my interview with Sarah Nichols.

Sarah Nichols  1:33  

Hey, everyone, Sarah Nichols here on the Founder of Nichols Law and HR law firm. I spent years representing Fortune 100 companies, and now I represent employees who have experienced discrimination, harassment, or retaliation by their employers. I’ve also taught at both Berkeley and Hastings law school. I have John Corcoran here. He has done thousands of interviews with successful entrepreneurs, investors and CEOs and we have flipped the script and he will be interviewing me.

 

John Corcoran  2:03  

All right. Thanks so much, Sarah, for having me. I’m excited to talk to you about this topic. So we’re going to be talking in this episode about a very relevant topic for the times because we’re recording this in the beginning of May 2020. We’re talking about how to determine if your workplace is safe during COVID-19 and what rights you have as an employee, what responsibilities that your employer has and some of the legal issues that are related around that. So stay tuned and we’re going to cover all of those different topics.

 

But first, this episode is sponsored by Nichols Law PC. Nichols Law is a San Francisco based law firm that represents clients worldwide, and is dedicated to ensuring women are treated and paid fairly in the workplace. Nichols Law’s mission is to close the wage gap for women and give a voice to employees. They represent individuals in retaliation or in relation to their discrimination, retaliation and Wage and Hour claims. also assist employees in negotiating their exits from their employers, if you aren’t sure whether you’re being treated fairly in the context COVID-19 or other situations, contact them for a no cost consultation at Nicholslawyer.com or email [email protected].

 

Alright, so, Sarah, on this topic, we’re gonna be talking about some of the issues related to a workplace during COVID-19. There’s a lot of people who are wondering whether their workplace is safe, what rights they have, what responsibilities their employer has. And let’s just start with one of them, which is, you know, if you are uncertain, does an employee have a right to work from home? Or if their employer is saying that they have to work in the office? Do they have to work in the office, especially if they don’t feel safe in doing so? What are some concerns or considerations around that question?

 

Sarah Nichols  3:55  

Right, good question. We’ve been getting a lot of employees saying, Look, I’ve looked at the Sitting rules on what’s essential and what’s not. And we just aren’t essential. And my boss is forcing me to come to work and I feel really uncomfortable, I feel unsafe. And we’ve even had an employee call the cops on their employer while they’re working there to shut them down. And so it really varies depending on the situation. And if you feel unsafe at work, and there’s ways for you to work from home, then there may be a lot of other options that you should explore other than going into work and you should never be made to feel unsafe in the workplace. And so, what you can do really depends on what your employer does. If you are an essential business, and you’re required to come to work. You have to really look at whether it’s reasonable or not for you to need more safety equipment. And if you’ve been given that equipment, then it may be necessary for you to work but And the employer may terminate your employment if you don’t come to work, if it’s safe, and it’s an essential business, if you’re not an essential business, and you can work from home, then you should be able to work from home.

 

John Corcoran  5:17  

And then the question is, what does the employer have to do to ensure that you can work for a home from home? Are they responsible for providing you with all the equipment they need? A computer, a phone, all those different things?

 

Sarah Nichols  5:31  

Yes. So Employers are required to help you be able to work from home and set you up with a computer or whatever you need to be able to do that work from home and reimburse you for reasonable costs that are necessary for you to do the job so you can’t go and get the most expensive chair you want and get them to pay for but there will be basics that the employer is required to cover including providing me with a laptop if that’s necessary.

 

John Corcoran  6:03  

And you mentioned safety equipment. So what are the obligations an employer has to provide in terms of safety equipment? And this would be for in the context of in the workplace, you know, do they have to provide hand sanitizer at everyone’s desk or all the workstations, they have to provide everyone with face masks or other equipment?

 

Sarah Nichols  6:23  

Right. Well, I guess the most common situation has been the largest number of employees affected this way have been employees who were restaurant workers, who are now you know, the restaurants pivoting to doing takeout that will be probably the most common employee current situation where they’re concerned about health and working close together. And every city has different guidance on what’s required in order to work in that situation. Also, grocery store employees would be another example of this and in most situations, It’s the same situation includes providing employees with gloves and face masks and the ability to use PRL or whatever disinfectant necessary to wipe down surfaces that they’re touching or come in contact with outside of wearing gloves. So

 

John Corcoran  7:19  

we’re jumping around a little bit here on these different questions, but I’m sure you’re receiving a lot of these different types of questions. So here’s another scenario. So let’s say I’m an employee, and I have some kind of symptoms, but I’m not, I’m feeling okay, I’m not feeling that bad. Can my boss send me home based on those symptoms?

 

Sarah Nichols  7:42  

Yes. So an employer can say employee home if they display any other symptoms. So if you’re complaining about a sore throat, work and don’t want to be sent home, that might not be such a good idea. But if you do have any of the symptoms, this probably best not to be at work at this point. And not only for yourself but for others, and an employer can send you home.

 

John Corcoran  8:08  

Yeah. And that relates to another one, which is kind of an unusual situation. But you were hearing that some people are asymptomatic, they don’t have any symptoms. So let’s say someone goes into the workplace, they’re feeling fine, they’re ready to work. They don’t want to be forced to go home. But the employer forces them to go home and forces them to take sick leave, in spite of them not wanting to do it. So what happens in that type of scenario?

 

Sarah Nichols  8:36  

Well, depending on the size of your employer, and where you’re located, even California cities vary. You will be entitled to a certain amount of your pay for a number of weeks, if you are home because you have to take care of someone with a virus or because you’ve been sent home because you have the virus and you’re also entitled to pay sick leave to make up for any gap between the amount the employer pays you and your full compensation. Hmm. Okay,

 

John Corcoran  9:08  

so another question. This is a privacy related question. So I come into work and I’ve got a little bit of a temperature. I’m running a little hot. Can my boss force me to take my temperature? Can they do that?

 

Sarah Nichols  9:27  

That’s a great question. So generally measuring an employee’s body temperature or anything that’s in any way vasive like requiring a urine test or whatever has been very highly regulated and only required if you’re operating heavy machinery or things like that. And it’s defined as a medical examination that just hasn’t been permitted or permitted under very limited circumstances, but based on current CDC guidance, and local health information Employers now can measure your body temperature, just for the limited purpose of evaluating the risk of that employees presence in the workplace and the possibility of evicting others or clients, customers.

 

John Corcoran  10:15  

Well, in the unprecedented times we’re here What about what questions can they ask me? Can they ask me if I got tested for Coronavirus previously? Can they ask me? other personal questions?

 

Sarah Nichols  10:29  

Yes, um, but they have to be very careful with the information that they receive. So, typically, you weren’t able to ask an employee what a disability was, you weren’t able to ask what the medical or health issue was or even why an employee may not have shown up for work. You could get a sick note or a doctor’s note. And the doctor’s note typically wouldn’t reveal what the condition was. But employees in California need to be careful about how they ask. If an employee doesn’t show up or doesn’t report to work, an employer is entitled to ask why the employee hasn’t shown up to work. And typically, in response, an employee is going to provide information, maybe disclosing an illness or disclosing that they had to go get a test. And an employer can’t share that information. It needs to be treated as a confidential medical record. They can then tell others that an employee in the workplace has been infected, but they can’t reveal the name of the employee. So the employer needs to have some respect for privacy, but they can ask questions. Okay,

 

John Corcoran  11:50  

so you mentioned doctor’s notes. So do I as an employee, do I have to provide a doctor’s note to be led back into work if I haven’t been at work? I’ve been forced to go home.

 

Sarah Nichols  12:02  

Well, it used to be that employers could require a doctor’s name. Now, given the pandemic, government entities have realized they don’t want doctors to be flooded with this kind of request, because they want doctors to be doing what they do best, and actually treating patients and not just writing doctor’s notes on mess. So there’s no longer or employers are not allowed to require a doctor’s note. Because there’s an overriding concern or desire that people just aren’t at work and are being punished for not coming to work if that helps reduce the spread of the virus.

 

John Corcoran  12:39  

So I imagine there could be a scenario where the employer is saying I’m not gonna let you back in yet the employees saying I feel fine, let me back in and it’s kind of a standoff between the two of them if they can’t go have a doctor’s note that’s going to help break the logjam, so to speak. What about anxiety and mental health issues? Let’s say that I’m an employee, I get anxious, you know, just being in this workplace right now, there’s a lot of anxiety going around. Can I work from home? Is that something that my employer needs to let me do?

 

Sarah Nichols  13:14  

Well, I’ve had a scenario like this arise, for instance a situation where the employer, whether the employer was a or is a grocery store, and everyone was having to come in and work. And there was this pressure for everyone to be there to work because it feels like letting some work from home and not everyone was fair. And there was one particular individual who had a lot of anxiety and really said I need to work from home. This is an accommodation, it’s possible for me to work from home, and the employer wanted to do the best they could to allow that individual to work from home because the work could be done there. It sort of felt them fair for other people in the workplace, but they still wanted to offer that. But the issue actually had to reduce that person’s hours because it wasn’t going to be possible for them to do all the work they could do if they came in. So it was a compromised situation, allowing that individual to work from home, it was possible for them to do the work from home. But I just wasn’t going to be able to pay them for eight hours a day. Because there was less work for them to do if they weren’t in the office, it was going to be harder for them to communicate everything that needs to be done. So there’s going to be lots of kind of compromise situations, I think.

 

Unknown Speaker  14:35  

Yeah, yeah.

 

John Corcoran  14:38  

You mentioned accommodations. So let’s say I’m an employee and I’m having anxiety or other mental health issues around this. What accommodations doesn’t isn’t employer obligated to provide? You know, do they have to provide some kind of paid or sick leave? Do they have to provide mental health services like Pay for me to talk to a therapist. If that’ll help me, what about support animal? Could I bring a support animal into work with me? I know I’m throwing a lot of different scenarios.

 

Sarah Nichols  15:11  

Well, I don’t think anyone wants additional stresses in the workplace right now. And I’ve done a lot of accommodation kind of questions around support animals. And if your dog doesn’t buy, you know, maybe that’s allowed him but I think I’ve had yapping dogs and pigs and all sorts of situations. And in my videos, someone wanted to bring a dog into a zoo. And that was really not a good idea.

 

John Corcoran  15:34  

A dog into a zoo.

 

Sarah Nichols  15:37  

Certainly depends on the workplace. But I think it really comes down to what is a reasonable accommodation. And some workplaces are going to be able to do certain things and other workplaces are just not like a zoo is not going to be able to have a dog coming to the workplace unless the dog can be in the back pain, but it can’t do it for everyone. So it really depends on What the accommodation is and what the workplace is where the workplace is and what’s going on there. So paid leave is not really typically a reasonable accommodation, but unpaid leave might be, it really depends on the size of the employer. It may and how many employees there are, and whether or not can be possible to provide it to the number of employees that need it, and whether that employer has enough money, and so we’re seeing a lot of employees lay off people and huge numbers, and what that percentage is might be sort of part of that decision making process is how much can we accommodate different people in this time. I also think HR people are under a lot of pressure right now. And so hearing from their employees that they’re stressed, may result in them not necessarily being as patient as they need to be. And they may misinterpret and not understand the mental health needs. have employees that vary, and maybe on sympathetic people who are having to look after their families at home, having to look after people that are high risk, and also have underlying conditions that are more than just regular anxiety or regular stress that we all face, but really serious underlying mental health conditions that people still fail to really understand and have sympathy for.

 

John Corcoran  17:26  

So many different issues that are overlapping affecting one another. All right, the last question I want to ask about is if I discover I do have the virus Coronavirus, and I tell my boss that can they tell other people? That’s one question and then I’ll have a follow up after that.

 

Sarah Nichols  17:45  

So they’re not permitted to tell people and reveal your personal health information. They can’t confirm the health status of employees or communicate about your health but they can reveal That an employee has been infected and therefore we are shutting down our office for cleaning or something like that.

 

John Corcoran  18:07  

Got it? Got it. Yeah. And then the follow up question is, can I be fired? related to that, you know, someone would pin an employer if it hasn’t happened yet it probably will. Could an employee employer fire an employee because they have the virus?

 

Sarah Nichols  18:26  

No, they can’t. It could happen. But if it does, it’s illegal, and you probably have a good claim.

 

John Corcoran  18:31  

Yeah. And related to that, to wrap things up. If you do have a question about these things, the laws are constantly constantly changing and evolving. It varies. What employer you work for, what city you’re in, where can people go to contact you, Sarah to get their personal questions answered.

 

Sarah Nichols  18:50  

So they can contact us by text or by calling (415) 504-30954 or [email protected] I also just really encourage people to not give up. If they feel like they have an unemployment claim to file that claim, even though they’ve heard that there’s the DDS overwhelmed or no, so many people have filed that they couldn’t get anything. Don’t just sort of put your head in the sand and give up. You’ve paid towards or your players pay towards you being able to get unemployment during times like this. And so, go through the process of applying for unemployment and go through the process of talking to a lawyer. Just because this is happening to a lot of people doesn’t mean that you don’t have the ability to seek out and see if your rights are being violated or get unemployment. Don’t be ashamed of what’s happening.

 

John Corcoran  19:56  

That’s a great point, Sarah, this has been extremely valuable. relevant, timely information. Thank you so much for taking the time to talk to us.

 

Sarah Nichols  20:04  

So thank you so much.

 

Intro  20:06  

Thank you for listening to the Smart Business Revolution podcast with John Corcoran. Find out more at smartbusinessrevolution.com and while you’re there, sign up for our email list and join the revolution. And be listening for the next episode of the Smart Business Revolution podcast.