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Not quite ready to return to work during COVID-19? Your job could be in jeopardy

An attorney said employers should spell out all precautions being taken as businesses reopen and workers return.

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Jill Krahn shows off the Face Line Film that guests will wear during their appointments at Hair Success in south Fargo as they prepare to open for clients on Friday. David Samson / The Forum
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FARGO — Employees of restaurants, gyms, hair salons and other establishments in North Dakota who just aren’t comfortable yet going back to work as some of those businesses reopen Friday, May 1, during the COVID-19 pandemic might be at risk of losing their jobs.

Employment and Labor Law Attorney Michelle Donarski said workers have rights under the federal Families First Coronavirus Response Act, or FFCRA, to continue to receive extended paid leave, in some circumstances.

But a worker's fear of contracting coronavirus alone isn’t enough to prevent a business from notifying the unemployment office and filling the person’s position, if the employee chooses not to go back to work.

“Do they have any other protections? Not under the law, they wouldn’t,” Donarski said of employees' rights.

She said some of those issues can be avoided, however, by the employer and employee having an open discussion about the concerns.

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An employer should identify all of the precautions being taken and inform workers about any personal protective equipment they’ll provide, including gloves and masks, Donarski said.

Jodi Ellingson Brown and her sister, Jill Krahn, own Hair Success Salon and the Salon Professional Academy in Fargo. They're opening the salon on Friday, May 1, and the school on Monday, May 4.

Ellingson Brown said a few employees have indicated they might not come back yet because they feel it’s too soon.

But she said the salon is taking even more precautions than what the state recommends to keep employees and guests safe.

“We’re going to be strict because we have a close-touch business,” Ellingson Brown said.

As the coronavirus pandemic took hold, many American workers were able to tap into the FFCRA, enacted March 18, to receive paid sick leave or expanded family and medical leave for reasons related to COVID-19.

Employees still unable to work now, due to caring for a child whose school or child care provider is closed, may be using up to 10 additional weeks of leave, at two-thirds their regular rate of pay, under FFCRA.

Donarski said there are other circumstances under which employees could delay returning to work.

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Michelle Donarski
Michelle Donarski is an employment and labor law attorney in Fargo.

If they have COVID-19 symptoms, or are being advised by a health care professional to quarantine, their employer would have to comply with that, she said.

Also, if the employee was caring for someone with COVID-19, the employer would have to make reasonable accommodations.

If a reluctant employee returns to work, contracts the illness and ends up having to be hospitalized or worse, could their employer somehow be liable?

Not likely, Donarski said.

Work-related injuries and illnesses fall under workers' compensation, but COVID-19 isn’t necessarily an occupational disease unless a person is a medical provider, she said.

A person could contract the illness anywhere and thus, it wouldn’t meet compensability under workers comp, she said.

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Ellingson Brown isn’t concerned about that type of liability, either. Her attorney told her it would be tough to tie a specific case of COVID-19 to the salon.

Meantime, she’s implemented many safety measures prior to the salon and beauty school’s openings.

Anyone not feeling well is asked to reschedule their appointment.

Entry rugs will be sprayed with sanitizer to kill germs on the shoes of anyone coming into the buildings, she said.

People’s temperatures will be taken upon entry, and all employees providing services will have to wear a mask and a plastic face shield. Guests must also wear a mask, which the salon will provide if they don’t have one.

Customers will receive a text when their stylist is ready, so they don’t have to wait in the lobby. Payment is virtually touch free, she said, and plexiglass is installed at the front desk.

Door handles and other high-touch areas will be wiped down frequently with disinfectant.

People coming in for body treatments, such as a massage, are asked to arrive at least 15 minutes early, as they must take a steam shower prior to the service.

The salon is charging an additional $1.50 per guest to cover costs of the extra safety measures, she said.

“We spent a lot of money just being safe,” Ellingson Brown said.

Circumstances will be much the same for Minnesota employees whenever businesses there begin to reopen, according to Donarski.

However, the timing of those openings is still up in the air.

Gov. Tim Walz announced Thursday, April 30, that he is extending the state’s Stay Home Order until May 18. However, retail businesses can open for curbside pickup or delivery on Monday, May 4.

Donarski said the answers to questions involving employers and their workers that have come up during the pandemic are fluid.

“What we’re saying today may be different tomorrow,” she said.

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