Some people are grateful for the continued paycheck. Others worry their own safety concerns aren’t being considered, and dispute how indispensable they really are.
“There are certainly going to be instances where employees who are deemed essential will be concerned about going to work,” said Lauren Novak, a partner in the labor and employment practice at Chicago-based Schiff Hardin. “Employers will need to be flexible but also be very clear that they have to show up. It is going to be very difficult for employers in essential industries to strike that balance.”
Who Decides What Is Essential?
Gov. J.B. Pritzker’s order, in effect from last Saturday through April 7, lists dozens of business categories considered essential, from gas stations, hardware stores and banks to food production and accounting services. Such companies are encouraged to remain open while other businesses were told to cease operations unless their employees can work from home.It’s up to employers to determine if their business falls under an “essential” category and to inform their employees. Businesses that aren’t sure where they fit are advised to contact the state’s Department of Commerce and Economic Opportunity for help. But the state doesn’t bestow “essential” status, nor police it.
But Are You Really That Necessary?
Differing interpretations of “essential” have caused some friction between employers who wish to keep operating and employees who believe the risk of exposure to the coronavirus outweighs their indispensability.Video game retailer GameStop came under fire from employees when it initially declared itself an essential business because it also sells items people use to work from home, such as keyboards and mice, and kept stores open in some states with lockdown orders. On Sunday it switched gears and now customers can buy merchandise online and pick up in stores.
In Illinois, some candy factory workers have contacted their union to question the necessity of keeping confectionary lines running, said Donald Woods, president of the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union Local 1, which represents about 3,500 people in the Midwest who work at companies including Mondelez International, Ferrara Candy and Tootsie Roll.
Woods said he consulted a local congressman for an opinion and was told candy is part of the critical food supply chain, in part because people holed up at home might be craving sweets.
“They’ve got to show up,” Woods said of his members. “The only thing we can make sure of is that employers follow the CDC guidelines. Employers are doing that.”
Chicago-based Ferrara Candy, maker of Lemonheads and Trolli, cited state and federal guidelines as reasons for continuing production. Late last week, the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued advisory guidance defining which workers are “essential to continued critical infrastructure viability” during the coronavirus emergency, a list that includes employees of food manufacturers.
“Ferrara, along with other food and snack manufacturers, continues to produce products to meet the needs of our consumers and retail partners,” spokeswoman Sarah Kittel said in a statement. “We are doing it with the highest standard of care possible to ensure the health and safety of our team, and we see it as a responsibility and privilege to keep our team employed through these challenging times.”
Businesses weighing whether or not they are essential — and therefore whether or not they should temporarily shutter — are grappling with employee concerns about safety as well as paychecks.
Ikea, which has closed all of its U.S. retail stores and many abroad, is keeping its distribution centers open to handle e-commerce. Though one could argue that buying a new sofa isn’t essential at this moment, Illinois’ stay-at-home order lists distribution centers as “essential infrastructure” and has a provision for businesses that sell or manufacture supplies to work from home. But the furniture-maker said the decision to keep selling online had more to do with keeping employees paid.
“It is important for each and every one of us to understand that the decision to continue to operate our ecommerce business as long as we can is not about making a profit,” the Swedish company said in an open letter to employees Monday. “It is about protecting our people and their livelihoods in this time of uncertainty. In these times, ecommerce is critical for the longevity of our business, and we need to protect the business, so that we can continue protecting our co-workers.”
Aviva Grumet-Morris, a Chicago-based partner in the labor and employment group at Winston & Strawn, said employers are taking pains to make an honest assessment of whether they are essential, a classification Illinois’ order says should be construed broadly to ensure necessary goods and services continue to be available. Companies that supply essential businesses are also considered, essential, so the order encompasses more than the obvious.
What Should Employees Do If They’re Concerned About Working?
Employees who dispute the essentialness of their business should raise concerns with their manager to get an understanding of the company’s thinking, Grumet-Morris said. If a person feels uncomfortable going into work, it’s possible that the employer could accommodate the worker as it tries to make the workplace compliant with evolving safety guidelines.“It may be that the solution here is one that is great for everyone,” Grumet-Morris said. “If you have a business and it needs to reduce the number of people that are on the floor at a particular time, or they want to move people to a different shift, it could be to the worker’s benefit.”
Employees who are particularly vulnerable to becoming ill with COVID-19, such as if they have an underlying condition, could seek a reasonable accommodation under the Americans with Disabilities Act that could allow them to work from home or take a leave, Grumet-Morris said.
Though Illinois is an at-will state, meaning employees can be fired without cause, many employers are accommodating workers who don’t want to show up to a work site because they are worried about virus exposure, attorneys say. Concerned employees can inquire about taking paid time off if they have it or unpaid leave if they don’t. Some companies are waiving their usual penalties for absences.
“I’m advising my clients not to take punitive action if an employee truly has a good faith belief that they’re truly scared,” said Brian Alcala, a Chicago-based attorney with Nixon Peabody who represents management in employment cases.
At Chicago-based Conagra, which makes Duncan Hines and Wishbone products at two Illinois plants, “if an employee chooses not to work their shift then they will still have a job when they return,” spokesman Michael Cummins said.
The United Food and Commercial Workers Local 1546, which represents some 25,000 regional grocery store cashiers as well as meatpacking and other food production workers, said employers have been accommodating employees’ individual situations.
“They are allowing them to take time off with or without pay, depending on the employer,” said Bob O’Toole, president of the local.
Ensuring Safety At Work Sites
Employers that continue to operate are being advised by the state to institute additional safety measures, such as staggering work schedules to minimize the number of employees present at the same time and using tape or signage to impose 6-foot social distancing rules. Some may close break rooms to prevent too many people from congregating, per CDC guidelines to avoid gatherings of more than 10 people.Anyone who can work from home should be encouraged to do so — and if they are working they must be paid, not forced to take paid time off, attorneys say.
Employees who feel their workplace is unsafe should contact the Occupational Safety and Health Administration, the Illinois Department of Labor said in a fact sheet addressing employees’ COVID-19 concerns.
Extra Pay, Protections
Some companies requiring employees to show up during the pandemic are sweetening the deal by offering extra pay and leave protections, often as they seek to hire thousands more workers to meet rising demand for certain services.Jewel-Osco, which is hiring 3,000 workers across the grocery chain, on Monday announced a $2 per hour pay raise for associates, and the installation of plastic sneeze guards at registers.
Mondelez International, the Deerfield-based food giant that makes Oreos and Triscuits, also announced a $2 hourly raise for front-line workers, two more weeks of paid leave and $150 bonus for sales representatives as it seeks to hire 1,000 more employees.
PepsiCo, which plans to hire 6,000 more workers, is increasing pay by $100 a week for 90,000 employees and has offered full pay for 12 weeks if a plant must close.
The federal emergency leave law approved last week also offers some additional worker protections, though it does not apply to employers with more than 500 workers and those with fewer than 50 can seek exemptions. It also doesn’t apply to independent contractors.
Under the act, which goes into effect April 2 through the end of the year, full-time employees get 80 hours fully paid sick time if they are experiencing symptoms of COVID-19 or are under a quarantine order, and part-timers get a proportionate amount. They get at least two-thirds of their regular pay if they are caring for someone with a coronavirus-related illness or must stay home with a child whose school or day care is closed.
The law also expands on the Family and Medical Leave Act by allowing people to take up to 12 weeks off at two-thirds pay, up to $200 daily, to care for a child subject to a public health-related school closure.
Uncharted Territory
The unprecedented nature of the pandemic response is raising more questions than answers about the obligations essential businesses have to protect their employees, said Karen Munoz, a partner with the boutique Chicago law firm Dolan Law, which represents plaintiffs in personal injury, victims’ rights and employment cases. She anticipates there will be plenty of people taking to the courts to challenge how they were treated by their employers during this time.“We are going to be seeing litigation from this for years,” Munoz said. That includes possible negligence claims if businesses don’t implement the recommended safety measures and employees end up getting sick.
But Munoz urges employees to talk with their managers about they concerns and to see if they can agree to an arrangement that makes them feel safe.
“Everyone needs to be a bit more humane during these times,” she said.
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