What information to share? What training is required? What is the appropriate level of protective equipment? What about privacy, safety for older workers or those most vulnerable? Who gets furloughed? Who gets rehired?
A job loss, even temporary, can cause great emotional trauma. It can lead an employee to a lawyer to answer the question “Why me?”
Merely calling it a “layoff” does not change an employee’s rights. Unequal treatment or selections that appear to have thinned out perceived “troublemakers,” or ignored written policies, can lead to a claim for damages.
New Mexico offers strong protections for wrongful discharge for employees who speak up about, or refuse to do something improper and illegal. Such claims provide for lost wages, stress and punitive damages. Even “at will” employees who question adherence to COVID orders or workplace safety, can be fully protected from termination.
Keeping the workplace clean: An employer must provide appropriate protective gear to all employees, but an employee in a high-risk group based on age, medical condition or family members with such risks, may still refuse work assignments that they reasonably believe in good faith may expose themselves to an imminent danger.
If the employer refuses the employee’s accommodation request, the employee may resign and still be eligible for unemployment compensation. The same employee may claim their resignation was a constructive discharge, giving them the same rights to sue as if they’d been wrongfully terminated.
COMPLAINTS: To optimize protection, it’s best to approach an employer with at least one other employee to question workplace safety. It also demonstrates that the complaint is not a personal grievance, but a matter of public concern. Consult with a lawyer quickly as some rights expire in as short as 30 days.
WHO GETS REHIRED?: Layoffs or furloughs that appear to be made disproportionately based on race, age, disability, serious health condition, national origin, sex, or other protected factors violate the New Mexico Human Rights Act. Laying off or not rehiring the more “vulnerable” older workers can lead to a claim of unlawful age discrimination.
WAGE AND HOUR: Salaried employees may have claims if they are placed on leave, had their job duties substantially altered or had their hours cut. If a salaried employee is furloughed, any contact with them could trigger the payment for the full week. Cuts in hours or pay below $35,568 a year, can trigger overtime requirements.
PRIVACY: Usually an employer cannot make health inquiries of their employees without violating privacy or discrimination laws. However, under a pandemic an employer can ask employees about any related symptoms they may have and take temperatures of workers or require medical clearances to return to work.
ACCOMMODATION: Some employees may be able to seek a reasonable accommodation such as working from home, a change in schedules or locale, or refusing clean-up duties. Upon return to the workplace all employees should be provided appropriate protective gear. Employers with over 50 employees, are required to provide up to two weeks of paid leave for self-quarantines or for care for children while their school or daycare is closed, and an additional 10 weeks of unpaid leave.
Despite having rights, prevention remains the best cure. If you have questions related to COVID, talk calmly with your employer and try to find common ground. We all share an interest in staying healthy and everyone is scared and uncertain. Working together, we can build a closer, more connected and creative workplace.
Eric Sirotkin is a New Mexico employment lawyer, mediator and author of Labor and Employment in New Mexico, Surviving and Thriving in the Workplace, and Witness: A Lawyer’s Journey from Litigation to Liberation. He taught Labor Law and Modern Employment Rights at UNM Law School. He performs trainings and advises and represents employees and employers in confronting complex workplace issues. The executive’s desk is a guest column providing advice or information about resources available to the business community in New Mexico.