Reopening Business Amid Coronavirus: Can an Employee Refuse to Return to Work?
As many states move to reopen businesses amid the coronavirus pandemic, employees are concerned about potential exposure to COVID-19 in the workplace. In light of this, employers who are reopening their business amid the coronavirus crisis are wondering, “Can an employee refuse to return to work when the stay-at-home order is lifted or eased?”
Can Employees Refuse to Work After Businesses Reopen?
Typically, employees do not have the right to refuse to work due to a potentially unsafe condition in the workplace (e.g., the risk of exposure to coronavirus). At the same time, employers should be careful not to discriminate against any employees who exercise their rights under the Occupational Safety and Health Act (OSHA). Under the Act, employees may only refuse to work if the following requirements are met:
- They asked the employer to eliminate the safety hazard;
- The employer failed or refused to eliminate the unsafe condition;
- The employee has a “good faith” belief that the hazard creates a risk of an imminent danger;
- Any “reasonable” person would agree that the hazard poses a “real danger” of serious injury or death; and
- The condition cannot be remedied or eliminated through appropriate channels such as OSHA inspections.
OSHA Suspends On-Site Inspections of Safety Hazards
Needless to say, many employees may be unable to meet the above-mentioned requirements to refuse to come to work during or after the coronavirus pandemic. On April 13, 2020, the OSH Administration said that it would engage in a “non-formal” investigation of complaints related to coronavirus-related hazards in workplaces for employees in the low- and medium-exposure risk categories.
Note: High-risk employees, including medical professionals and healthcare delivery and support workers, are still able to request an on-site inspection.
The non-formal investigation is performed in the form of notices of an alleged hazard to which employers must respond. The OSHA will not warrant an on-site inspection if it considers the employer’s response to the notice adequate. The employer must demonstrate that the company has taken appropriate measures to mitigate the risk of exposure to COVID-19 in the workplace.
Can Employees with Underlying Medical Conditions Refuse to Work?
But what about employees who are at a higher risk of coronavirus illness due to their age, underlying health condition, or other factors? Do these employees have a right to refuse to work before or after the COVID-19 pandemic?
Under the Americans with Disabilities Act (ADA), employees do not have the right to refuse to work due to a disability. Also, a generalized and unreasonable fear of contracting coronavirus at work is not a covered disability under the Act.
However, if the worker who refuses to work has a covered disability under the ADA that puts them at greater risk from COVID-19, their employer must engage in the interactive process and provide reasonable accommodations to that employee to eliminate possible exposure, unless these accommodations cause undue hardship on the employer.
During the interactive process, the employer should discuss available workplace protocols and policies that are in place to minimize the risk of COVID-19 infection at work.
Speak with a West Palm Beach employment law attorney to resolve your dispute with employees who are refusing to return to work in the wake of the coronavirus pandemic. Contact Pike & Lustig, LLP, to receive a case review. Call at 561-291-8298 or complete our contact form.