'They still want you to come in': Some workers, businesses disagree on what's 'essential'

Mar. 26--Social distancing in a factory that restores diesel engines is difficult.

At Caterpillar Remanufacturing in Franklin, people tear down old Ford and Navistar engines, put them through chemical baths and then reassemble and test them before putting them up for sale.

The proximity of workers worries some in the facility, And they're not the only worried workers. Employees who labor at golf courses and electronic restoration services also shared concerns with IndyStar.

These businesses are still open after an executive order from Gov. Eric Holcomb that allows only "essential" work to continue amid the coronavirus pandemic -- a term that includes a broad array of industries, including health care, grocery stores, and finance and insurance institutions.

But some employees who spoke with IndyStar believe their bosses are finding loopholes to justify staying open as an essential business, potentially risking the spread of the virus.

IndyStar is not naming the workers because they fear retaliation, but also made specific efforts to ensure the employees work at the companies.

"They say that their No. 1 goal is everyone's safety and all of that, but when there's a pandemic going on, they still want you to come in and work. It's just kind of conflicting interests there," said one worker at Caterpillar Remanufacturing. "I find the 'essential' argument can be morphed into whatever you want it to be."

The scenario, workplace attorneys say, is likely to happen given the broad list of jobs deemed "essential" under the governor's executive order.

"It is a hot topic, and I know a lot of employees are frustrated, and we've gotten calls on it," said Ryan Fox, attorney with the Fox, Williams and Sink employment law firm. "It is so new, I can understand why an employee would be frustrated -- especially if they believe they're being required to go into work at some place they truly believe is not essential."

Rebuilding engines

The man who works at Caterpillar questions the Franklin location's essential role -- particularly since companies such as Ford closed their North American plants last week to sanitize facilities after pressure from the United Auto Workers union.

Navistar International Corp. also paused production at its truck assembly plant in Springfield, Ohio, for two weeks beginning Monday in response to the pandemic.

Caterpillar, however, maintains that its activities are essential to infrastructure and powering necessary vehicles, citing the support of governmental bodies.

The company did not answer a list of questions from IndyStar, but stated in a release that it remains dedicated to the health and safety of its team and communities and continues to closely watch the COVID-19 situation.

"Our customers use Caterpillar products to build and support basic infrastructure the world needs now more than ever, including access to water, electricity, roads, bridges, hospitals, schools and more," it reads.

What to know: What you can do if your employer is still making you go to work

The worker said Caterpillar Remanufacturing told them that reassembled engines could possibly go into an ambulance or utility truck.

To increase sanitation, the company changed out fabric rollers for paper towel rolls in restrooms and installed more hand sanitizer, he said. Caterpillar stated in its release that it is making sure work areas are often disinfected.

Fixing electronics

At Electronic Restoration Services of Indiana, which works with insurance companies to repair electronic equipment damaged by disasters, one employee worried about close contact with other people and becoming an asymptomatic carrier.

The small franchise business has workers travel around the state to customer sites, pick up equipment to be fixed and then bring it to technicians to fix.

The employee said workers have been given masks and continually sanitize their work area and try to maintain social distance.

"I don't think my company is, like, full of bad people for doing this or for trying to persevere through this," he said. "At what point does social responsibility and responsibility to your employees' health take over from staying in business, I guess? And if you're not going to push pause now, like what is the event that is going to make the pause button get pushed?"

Owner Jeff McGannon said he and his wife were torn on deciding whether to keep the business open. The couple are both older than 50 years of age and have asthma.

"But it's more of a fact that we're deemed an essential service," he said, noting that the company services insurance companies. "And we want to make sure that, for our employees, that we don't put them out of work in a way that they can't be compensated."

Employees who don't feel comfortable coming to work can either use their paid time off or become unemployed -- a move McGannon noted would help them file an unemployment claim.

"I'd be more than happy to pay them all 100% of their pay to stay home and be safe, but I am also a small business," he said. "I don't have unlimited resources, so I can't just say, 'Go for that,' and we end up closing the business because I can't make payroll two weeks after, three weeks after, the thing shuts down."

Gray areas of safety with outdoor activities

Global panic over the pandemic hasn't stopped golfers from enjoying good weather.

Since the governor has deemed golf an essential activity, nine city golf courses remain open, according to Ronnetta Spalding, chief communications officer for Indy Parks and Recreation. The city's golf courses are to limit clubhouse access, ask customers to pay over the phone or online, not share golf carts and ask people to walk.

The governor's executive order, which took effect for the first full day Wednesday, highlighted six-foot distances and available hand sanitizer, while asking employers to deep-clean surfaces often and make food and beverages carryout only.

But one golf course worker said ensuring social distance will be difficult, if not impossible. Crowds easily gather inside and outside the clubhouse, he said. People tally up scorecards as they chat, eat, drink and use the restrooms.

"All these guys are guys who are having to work from home and they're wanting to come play golf, but the same things that are making them work from home means they probably shouldn't gather together and play golf," the worker said.

"Before and after the rounds, they gather together. It turns into a bar very quickly."

When groups were first limited to 10 people, the course "put out a sign that said you need to keep your groups of over 10 outside, and no one followed that," the worker said.

Spalding said Indy Parks is working with golf course operators to implement the plans but also is depending on players to follow the guidelines.

Employee recourse

Holcomb advised employees who feel they're wrongfully called to work to first talk with their employer and work it out "the Indiana way."

That's almost laughable to some employment law attorneys.

"They can have conversations with their boss," said Shannon Melton, a workplace attorney in Indianapolis. "But I'm telling you, I've seen lots of employees have conversations with their boss that end up with, 'You're gone.' "

In an at-will state where employers may fire employees for any reason that's not illegal, options are limited.

"Particularly in a blue-collar environment and manufacturing, if you go to your boss and say, 'Hey, I don't think this is right, you know, this isn't fair,' I would say more often than not, you're not going to receive kindness in return for that," said the worker at the Caterpillar facility.

The city of Indianapolis advised employees to report issues to the Emergency Operations Center at [email protected].

The state Department of Labor, meanwhile, noted that it has no authority to declare a workplace emergency or change employer policies on infectious diseases -- although there are federal Occupational and Safety Health Administration standards for keeping a safe work space. Employees can still file a complaint with the state's version of this agency if they feel unsafe at work.

Employers may use the long list of "essential" businesses to their advantage, deeming their work necessary and forcing employees to show up, attorneys say.

"The problem is the employee would have to ... probably show that their business is non-essential," said Fox of the Fox, Williams and Sink employment law firm. "And because it is so broad currently, an employer may have an easy time arguing that their business is, in fact, essential in some capacity."

But new federal guidelines may help protect workers when they kick in by April 2.

The Families First Coronavirus Response Act allows two weeks of emergency sick leave for those who are in quarantine or two weeks at two-thirds the rate of regular pay for those who are caring for a quarantined individual or a child due to the crisis.

It also provides up to another 10 weeks of family and medical leave at two-thirds the rate of pay for those who are caring for a child.

But until all of that kicks in, employees may only be able to do one thing: find a way to make do.

"It depends on your job and your current situation, whether or not you can get another job," said Melton, the employment attorney. "If you can't, and your family's depending on you, things of that nature, you may just have to bite the bullet and keep yourself as safe as possible."

All of IndyStar's coverage of coronavirus is being provided for free to our readers. Please consider supporting local journalism by subscribing to IndyStar at indystar.com/subscribe.

Contact IndyStar reporter Amelia Pak-Harvey at 317-444-6174. Follow her on Twitter: @AmeliaPakHarvey.

Contact IndyStar reporter Domenica Bongiovanni at 317-444-7339 or [email protected]. Follow her on Facebook, Instagram or Twitter: @domenicareports.

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