COVID-positive workers pressured to stay on the job, say OSHA complaints

By: - January 11, 2022 5:59 am

Drive-through testing at Sam Boyd Stadium Sunday night. (Clark County photo)

Workers who test positive for COVID say they’re being asked to stay on the job, according to a dozen complaints filed with Nevada OSHA in December. 

“Four employees that had informed management that they tested positive for COVID were denied time off to quarantine and faced retaliation if they did not return to work,” says a complaint filed against a popular Las Vegas eatery in late December. The Current is not identifying the restaurant as the complaint has not been substantiated.

Nevada OSHA has yet to substantiate any complaints filed in the second half of 2021.  

“They have 6 months to issue a citation,” says Nevada Business and Industry spokeswoman Teri Williams. “It’s possible there is a mix of inspections that found no violations and those that are still in process.”

Of the 216 complaints filed with Nevada OSHA in December, a dozen involved employees being asked or required to work while COVID-positive, or symptomatic and awaiting test results.     

“The employer is not ensuring that employees that exhibit COVID-like symptoms are required to stay home,” says a complaint filed Dec. 27 by workers at a retail establishment in a Las Vegas hotel. “Management required the symptomatic employees to continue working through the holiday weekend, potentially exposing the rest of the employees.”

“Employees experiencing symptoms of COVID-19 were denied time off to get tested and quarantined,” says a complaint filed against another Las Vegas restaurant in late December.  “Management told the sick employees to come into work…” 

Omicron, the latest COVID variant, is highly infectious, exacerbating an already critical labor shortage. But it’s less virulent, according to health experts, resulting in symptoms more akin to a head cold than the respiratory distress associated with previous strains of COVID. 

Nevada health officials report a record number of new COVID cases in recent days. On Friday, the Southern Nevada Health District reported a record 6,110 new cases in one day.

Is the plethora of infected individuals, coupled with the critical shortage of workers, causing employers to throw caution to the wind in an effort to keep their businesses open?   

Some 4.5 million workers in the U.S. quit their jobs in November, according to the Bureau of Labor Statistics, and a whopping one million workers quit jobs in the hospitality sector. It’s a record number of resignations overall and a record number for restaurant and hotel workers. 

Wages for hotel and restaurant workers have increased by 13.61% during the pandemic – from $16.90 an hour in Feb. 2020 to $19.20 in November, Business Insider reported this week. 

While recent COVID developments – a lower death rate, the availability of vaccinations, and more treatment options – may ease an employer’s moral qualms about requiring employees to work while sick, experts say the practice is nothing new.  

A joint investigation conducted by Popular Information and More Perfect Union, a media outlet focused on working people, reveals Red Lobster employees who reported symptoms of COVID were threatened with discipline if they didn’t come to work. 

The chain of national restaurants denied the allegation in a statement. 

“No one is allowed to work sick,” Red Lobster said in a statement. “Employees who violate this policy are subject to disciplinary action, including termination of employment.”

Minimum-wage workers who often lack paid sick leave are especially vulnerable to coercion from employers who demand they work while sick. 

Only 12% of Red Lobster employees have paid sick leave, according to the report.  

An OSHA complaint filed December 16 against a fast food restaurant in Pahrump says an employee was allowed to work after receiving a positive COVID test on Dec. 12.  

The worker “posted her COVID-19 results on an employee bulletin board but the manager made the employee take it down.” 

The Shift Project is the “largest source of data on work scheduling for hourly service workers,” according to its website.

About two-thirds of workers The Shift Project surveyed last year who had been sick in the last month (not just with COVID) reported working while sick, according to Dr. Daniel Schneider, a Professor of Public Policy and Professor of Sociology at Harvard University, and co-founder of The Shift Project.

“When we asked these workers why they worked sick, we found that a confluence of lack of paid sick leave AND chronic short-staffing were to blame,” Schneider told the Current via email.

The workers surveyed cited all the factors that applied to their situation:

– I didn’t have paid sick leave (30%)

– I was afraid I’d get in trouble for calling out sick (44%)

– I couldn’t get medical documentation (30%)

– My supervisor pressured me (17%)

– I wanted to save my sick days (10%)

– I couldn’t get anyone to cover my shift (40%)

– I needed the pay (55%)

– I didn’t want to let down my co-workers (45%)

Some employers encourage ill employees to attend work while sick by imposing a ‘mandatory absence’ policy, says Las Vegas employment attorney Christian Gabroy. “Eight strikes and you’re out the window.”

Gabroy advises anyone who is awaiting COVID test results or has tested positive to document a request to come to work. 

“It is not safe for me to return to work now,” he advises an isolated employee to respond in writing to an employer. “I have tested positive for COVID. I have COVID symptoms. I have not tested negative for COVID. After the CDC’s required time period and testing guidelines, may I please alert you of my return to work?” 

“At this point, contact OSHA. It’s generally better if you have contacted OSHA before you’re terminated,” Gabroy advises. 

Employers have an obligation under a variety of laws, including the Americans with Disabilities Act, to protect employees from a “direct threat.” 

A “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,” according to the Equal Employment Opportunity Commission, which offers extensive guidance to employers on dealing with COVID and employees, and provides links to the Centers for Disease Control website. 

“Potentially exposed employees who have symptoms of COVID-19 should self-isolate and follow CDC recommended steps,” the CDC’s website says. “Potentially exposed employees who do not have symptoms should remain at home or in a comparable setting and practice social distancing…”

Gabroy says workers should “tell the employer they’re violating Equal Employment Opportunity Commission guidance by asking a worker to return, and ask that they please not retaliate.”

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Dana Gentry
Dana Gentry

Dana Gentry is a native Las Vegan and award-winning investigative journalist. She is a graduate of Bishop Gorman High School and holds a Bachelor's degree in Communications from the University of Nevada, Las Vegas. Gentry began her career in broadcasting as an intern at Channel 8, KLAS-TV. She later became a reporter at Channel 8, working with Las Vegas TV news legends Bob Stoldal and the late Ned Day. Gentry left her reporting job in 1985 to focus on motherhood. She returned to TV news in 2001 to launch "Face to Face with Jon Ralston" and the weekly business programs In Business Las Vegas and Vegas Inc, which she co-anchored with Jeff Gillan. Dana has four adult children, two grandsons, three dogs, three cats and a cockatoo named Casper.