June 19, 2020
When Employees Refuse to Return to Work Due to COVID-19
by Maribeth Meluch, Isaac Wiles Burkholder & Teetor LLC
As we now reopen our doors, what rights do employees currently have to refuse to work in light of the COVID-19 invasion? There may be no easy answers to many of these questions however federal and state laws provide some guidance.
For private employers, the Occupational Safety and Health Act requires that all such employers provide to each of its employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” That includes maintaining a workplace free of infectious disease.
There is no concomitant right under the OSH Act that entitles employees generally to walk off the job because of potential unsafe conditions at the workplace. However, when an employee in good faith believes that performing an assigned task will likely expose them to serious injury or death due to a hazardous condition, the employee may refuse to perform the task if they have notified the employer who has refused to remedy the situation and there is insufficient time, due to the urgency of the hazard, to correct it through regular enforcement channels.
What if the hazardous condition forming the employee’s basis for the refusal to work is the potential presence of COVID-19 in the workplace? What will constitute evidence that the virus is present and poses a significant hazard of imminent danger of serious injury or death such as to support an employee’s good faith reasonable belief that entitles the employee’s refusal to work? Practically, it may be impossible to make a determination that the virus is present or that other employees who are sick with COVID-19 contracted it from the workplace, thus hampering an employee’s claim of retaliation. However, if courts impose presumptions, the best defense may be through evidence of the protocols the employer had implemented to prevent contracting COVID-19 such as following guidelines or mandates issued by states, OSHA and the CDC with respect to use of personal protective equipment, scheduled and regular sanitization, employee education on safe practices and increased personal hygiene, prohibiting sick & symptomatic employees form working, and social distancing through barriers and physical distancing. Not only is the virus a concern for health and safety, employers also must be mindful that the chemicals used in the sanitization protocols do not present an unsafe workplace by not following the use and exposure instructions for each chemical.
The fear of contracting COVID-19, alone, is generally not going to entitle an employee to any protection from returning to work. However, employees who may be particularly vulnerable such as the elderly and health-compromised may implicate other federal or state laws such as the Americans with Disabilities Act. An employee who has an underlying condition that causes the employee to be particularly vulnerable to contracting COVID-19 and/or dying from it, may have a disability entitling the employee to an accommodation. That accommodation may include extended leave, paid or unpaid, depending on whether such leave would constitute an undue hardship for the employer. Or, if attendance at work is not an essential function of the employee’s position, telework may be a reasonable accommodation.
Lastly, Section 7 of the National Labor Relations Act provides a right to concerted activity to employees, whether or not you have a present union shop. Concerted activity includes the right of employees to bring to an employer’s attention, in concert, issues regarding terms and conditions of employment. That may include concerns regarding the employer’s safe work practices with respect to COVID-19 which may implicate the prohibitions against retaliation and discrimination under Section 7.