Amid fears of the COVID-19 pandemic, are employees’ jobs legally protected if they refuse to return to the workplace?
As things return to normal, employees, both essential and non-essential, are returning to work. Some of these individuals have teleworked for the past three months, while others were unable to work remote and were temporarily out of work. Regardless of each individual situation, employees inevitably may fear reintegrating back into the workplace. These fears are not unfounded, but employees may be a necessity in the workplace if a business wants to continue operations. Employers may begin to wonder: Are employees protected from termination if they choose not to come back to the workplace as a result of fear of COVID-19? The answer to this question hinges on the reason for the employee’s fear.
NLRA
It is unlikely that the Nation Labor Relations Act (“NLRA”) will protect employees’ fears, unless those employees engage in a protected concerted activity. Section 7 of the NLRA extends statutory protections to those employees in both union and non-union settings to engage in protected concerted activity for mutual aid or protection.
For example, for non-unionized employees, if a concerted workplace action occurs: (1) if it is by a single individual, there is no protection to that worker, since the law requires protected concerted activity of more than one individual; (2) if the action involves two or more employees, it may be protected if it is based upon a reasonable concern that workplace safety or health has been compromised; and (3) if it is determined that an employee or group of employees has simply insisted that they are too “fearful” to go to work, without more, employers may have the right to take disciplinary action.[1] Employers may want to consider an unpaid suspension or leave rather than discharge in the first such instance of such an action. The optics of terminating employees who protest their safety in the current pandemic may have consequences, regardless of the legitimacy of any discipline being considered.
OSHA
The Operational Safety and Health Act (“OSHA”) only protects workers if they have a reasonable belief that they are in imminent danger of death or serious physical harm. As OSHA relates to COVID-19, the employee’s fear of infection must be based on fact—not just a generalized fear of contracting COVID-19 infection in the workplace. Even so, the employer has an opportunity to resolve the employee’s specific fear in a manner designed to ensure a safe working environment. However, if the employer fails to do so, the employee may be protected by OSHA in their refusal to come to work.
ADA
Some employees who fear coming into the workplace due to COVID-19 may be covered by the American with Disabilities Act (“ADA”). The ADA requires employers to provide reasonable accommodations to qualified employees with disabilities.[2] In the case of COVID-19, employers should attempt to provide accommodations to employees who are covered by the ADA, who request altered worksite arrangements, telework or time off from work due to underlying medical conditions that may put them at greater risk from COVID-19.[3] Additionally, the EEOC’s guidance on COVID-19 and the ADA notes that other types of accommodations may include changes to the work environment to reduce contact with others, such as using Plexiglas separators or other barriers between workstations.
FFCRA
Lastly, employers must keep in mind the Families First Coronavirus Response Act (“FFCRA”), when determining whether an employee’s fear of going into work is protected. While the FFCRA does not protect fear itself, the FFCRA mandates certain small employers with fewer than 500 employees[4] provide additional medical and/or family leave for those employees who qualify. This includes those employees who currently have or exhibit symptoms of COVID-19 or whose family members have or exhibit symptoms of COVID-19.
What should you do?
As a potential solution to the issue of retaining workers despite fears of COVID-19 in the workplace, some employers who employ essential workers are providing “hazard pay” or extra pay for dangerous work, in order to ensure that employees continue coming to work. Hazard pay is certainly permitted; however, employers are cautioned to treat all employees the same in providing such pay, or they may subject themselves to a discrimination claim.
Either way, employers should implement various safety precautions in the workplace to combat the spread of COVID-19 and follow CDC guidance to minimize fears and ensure workplace safety.
We at Valla & Associates, Inc., PC are available to assist you in these and other matters regarding business transactions and litigation in the Unites States.
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Requests for information or insights on the issue discussed in this article may be addressed to lisa.parrish@vallalaw.com or mario.riva@vallalaw.com. This article is for information purposes only and does not constitute legal advice. The information contained herein may be outdated or incomplete, and shall in no way be taken as an indication of future results. The transmission of this article is not intended to create, nor does its receipt constitute, an attorney-client relationship between preparer and reader. You should not act on the information contained in this article without first seeking the advice of an attorney.
[1] There are exceptions to the mandatory requirement. For more information on the FFCRA, visit: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
[2] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada
[4] Encourage employees to report any concerns, no matter how trivial, about workplace safety and health to designated human resources personnel. Employer should take reported concerns seriously and, if possible, attempt to address them with constructive and substantive actions. Employers should not ignore any complaints about safety. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions