AFL-CIO President Richard Trumpke has recently called for employees to have the right to refuse to go to work if they believe it is unsafe due to their employer’s failure to institute sufficient protocols to protect them from COVID-19. He and others are calling for the Occupational Safety and Hazard Administration to issue mandatory emergency temporary orders for employers rather than relying on the guidance papers issued thus far. Employees of non-union companies have also been protesting having to return to work due to fears of the potential presence of the COVID-19 virus. That begs the questions – what rights do employees currently have to refuse to work in light of the COVID-19 invasion? And when is a workplace deemed “unsafe” such that any right to refuse to work arises?
There may be no easy answers to many of these questions however federal and state laws provide some guidance. Additionally, there may be other practical reasons to allow an employee leave from work such as assuring the existence of a workforce once circumstances normalize and business resumes.
OSHA and the Right to Refuse to Work
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.” 29 USC §654. 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. The OSH Act envisions a discourse between the employee and the employer whereby the hazardous conditions which may be violative of the Act will be brought to the attention of the employer which has a responsibility to correct them. If the employer does not correct the violation, or if the employer disputes the existence of any safety hazard, the employee’s ordinary remedy is to request an inspection by the Occupational Safety Hazard Administration.
However, there may be situations where the safety hazard is so severe and urgent that it entitles an employee to refuse to work. When an employee reasonably believes that performing an assigned task will likely expose him to serious injury or death due to a hazardous condition, the employee refuses to perform the task. The employee’s right to refuse to work is subject to having met all of the following conditions:
The employee has a good faith belief that an imminent danger exists that is likely to result in serious injury or death;
The employee has notified the employer, when practical, of the hazardous condition and the employer has refused or failed to make the correction;
A reasonable person would also conclude that there is a real danger of imminent death or serious injury; and
There is insufficient time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an inspection by the Occupational Safety and Health Administration (“OSHA”).
If all of these elements are met, an employer may not discipline an employee who refuses to perform an assigned task. Under current OSHA protocol, however, the employee is expected to remain at the worksite until ordered to leave by the employer. This entitlement is not a free pass for an employee not to show up to work at all.
Public employees in Ohio are subject to the Public Employment Risk Reduction Program, R.C. Chapter 4167. Similar to the OSH Act, such employees may refuse to perform an assigned task if they believe in good faith that the work conditions present an imminent danger of death or serious harm to the employee, provided that:
such conditions are not such as normally exist for or reasonably might be expected to occur in the occupation of the public employee;
the employee has requested the employer to correct the hazardous condition but such condition remains uncorrected;
there was insufficient time to eliminate the hazard by resorting to other statutory enforcement methods; and
a reasonable person would also conclude that there would have been imminent danger of serious injury or death.
An employee who refuses to perform an assigned task and fails to comply with the above conditions is subject to discipline for his refusal to work.
Given all of the above, what if the hazardous condition forming the employee’s basis for the refusal to work is the potential presence of the COVID-19 virus 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? That remains unknown but is likely to vary with the specific circumstances.
The practical answer is that it may be impossible to make a determination that the virus is present or that other employees who may be sick with COVID-19 contracted it from the workplace, thus hampering an employee’s claim of retaliation. However, various authorities have suggested creating rebuttable presumptions in favor of finding an unsafe workplace where a certain percentage of employees were diagnosed with COVID-19 or tested positive. Such presumptions may be rebuttable by 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 Centers of Disease Control with respect to use of personal protective equipment (PPE), scheduled and regular sanitization, employee education on safe practices and increased personal hygiene, prohibiting sick and symptomatic employees form working, and social distancing through barriers and physical distancing. In workplaces frequented by the public, those factors may be more difficult to control. Employers will have to wrestle with balancing disciplining an employee for refusing to work and the risk of a lawsuit for retaliation or discrimination. Not only is the virus a concern for health and safety, employers also must be mindful that the chemicals in the sanitization protocols do not present an unsafe workplace as well by not following the use and exposure instructions for each chemical.
OSHA has several applicable standards to help guide employers on maintaining a safe workplace in this new environment, including:
Personal Protective Equipment - Standard 29 CFR 1910 Subpart I
General – 29 CFR 1910.132,
Eye and Face Protection – 29 CFR 1910.133
Respirator Protection – 29 CFR 1910.134
Hazard Communication - Standard 29 CFR 1910 Subpart Z
OSHA’s Guidance on Preparing Workplaces for Covid-19 is available at www.OSHA.gov.
Other Legal Implications and Applicable Law
The fear of contracting COVID-19 is generally not going to entitle an employee to any protection from returning to work. However, employees may be especially fearful of showing up to work if they, or loved ones at home, are particularly vulnerable such as the elderly and health-compromised. That may implicate other federal or state laws such as the Americans with Disabilities Act and similar state laws. Employers should review all requests by employees for leave with an eye to the requirements of these laws.
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.
An otherwise healthy employee is not generally entitled to stay at home due to the danger of infecting a vulnerable family member. However, if the family member has another serious health condition, the employee may be able to seek leave under the Family Medical Leave Act if the employee’s presence is necessary to care for that family member.
Lastly, what if the employee is in the vulnerable age group but otherwise healthy? Or has a doctor’s statement advising he not appear at the worksite due to a potential vulnerability. No existing federal or Ohio appears to address such a situation directly. However, Ohio recognizes a claim for wrongful discharge in violation of public policy. It is yet to be seen how far that doctrine can be pushed to cover these situations.
Future Issues Impacting the Employee Permitted to Take Leave
Dealing with an employee who has not returned to work after a voluntary extended leave, or finally, after the crisis has assuaged, desires to return to work is fraught with its own complexities. This situation presents not only potential legal issues but practical ones that may involve morale issues and other human resource concerns. For example, should employees who voluntarily took leave be first in line for layoffs? What are the repercussions for an employer that lays off employees who took leave due to being in vulnerable age group of over 65 – is that a violation of the Age Discrimination in Employment Act? Can an employer pay the workers who continued to work incentive payments or bonuses - or will those be subject to claims of discrimination?
As can be seen, COVID-19 presents a myriad of novel and problematic scenarios for the employer. For help with evaluating your proper response when confronted with these complex employment issues please call Maribeth Meluch or one of our partners in the Business or Employment Practice Groups at 614-221-2121.
Can you weigh an employee’s refusal to work when considering future employment decisions such as layoffs or salary reductions?