Do Lab Employees Who Fear COVID-19 Infection Have the Right to Refuse Work?

In normal times, failure to show up for work or refusing to carry out work assignments is a form of insubordination subject to discipline. But in times of pandemic, work refusals by employees due to fears of COVID-19 infection may be deemed the exercise of a legitimate health and safety right. Result: Disciplining employees for engaging in such refusals may expose your lab to risk of liability under OSHA laws. Here’s a look at the COVID-19 work refusal conundrum and how to maneuver around it.

OSHA Work Refusal & Discrimination Laws

Section 11 of the Occupational Safety and Health Act makes it illegal for an employer to “discharge or in any manner discriminate against any employee” for raising a health and safety complaint or exercising any right under the Act. Potential penalties for “discrimination” include reinstatement, back pay and fines.

The regulations implementing Section 11 send conflicting messages. On the one hand, they say that employees aren’t allowed “to walk off the job because of potential unsafe conditions at the workplace.” But in the very next paragraph, they say that employees can’t be disciplined for not performing tasks or subjecting themselves “to serious injury or death arising from a hazardous condition at the workplace.” Specifically, a refusal is allowed under four conditions:

1. The employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition;
2. A reasonable person would conclude that there’s real danger of death or serious injury;
3. Due to the urgency of the situation, there isn’t enough time to eliminate the danger “through resort to regular statutory channels,” e.g., calling an OSHA inspector; and
4. The employee “seeks from the employer, and is unable to obtain, a correction of the dangerous condition.”

And in a 1980 case called Whirlpool Corp. v. Marshall involving two employees’ refusal to perform maintenance tasks that led to the death of their co-worker under the same conditions, the US Supreme Court upheld the regulation as reasonable and consistent with the purposes of the Act. The Court went on to find that the employer committed “discrimination” by placing reprimands in the workers’ employment files.

 How to Handle a COVID-19 Work Refusal

Under what conditions would the fear of contracting COVID-19 at work satisfy the refusal criteria set out in the Regulation? Unfortunately, there’s never been a court case addressing the issue of whether an infectious illness can be grounds for a work refusal. But here’s what we can tell you based on the case law that does exist, as well as the OSHA refusal guidelines in the event any of your lab employees engage in a work refusal.

1. Employees Must Show Up to Work to Initiate a Refusal

 It’s not just the basis of the refusal but also how the employee initiates it that determines its validity. During the pandemic, there have been reports of employees refusing to come to work due to fears of COVID-19 infection. Phoning in a refusal is beyond what OSHA guidelines list as the steps employees should take to initiate a work refusal:

• Ask their employer to correct the hazard or assign them to other work;
• Tell the employer they won’t perform the work unless and until the hazard is corrected; and
• Remain at the worksite until ordered to leave by their employer.

The clear understanding from the guidelines is that the employee must show up for work and refuse in person. Result: Lab employees who won’t report for duty due to infection fears don’t have a valid work refusal and are subject to discipline.

2. Beware of Knee-Jerk Discipline

Lab managers also need to prepare for COVID-19 refusals. Specifically, supervisors need to understand that there is such a thing as a refusal right and that dispensing discipline on the spot without hearing out the employees’ health and safety concerns may be illegal discrimination.

3. Investigate the Refusal

 Instruct supervisors to investigate the situation and determine whether the danger prompting the employee’s COVID-19 refusal is one that a reasonable person would see as constituting a real danger to health and safety. Fear of COVID-19 infection is likely to be found reasonable where:

• There’s a known or confirmed case of COVID-19 in the workplace;
• The lab isn’t following the required CDC and other public health guidelines with regard to social distancing, personal protective equipment, handwashing and hygiene and/or cleaning and disinfection; and/or
• The employee is over age 65 or has other medical conditions rendering him particularly susceptible to COVID-19.

By contrast, COVID-19 fear is likely not “reasonable” where an employee’s infection risks are basically no different from those of any person that chooses to leave the home and go out into public during the pandemic. In other words, the mere fact that people who come to work are more likely to contract COVID-19 than people who stay home isn’t enough.

 Take Corrective Actions

 If supervisors conclude that there is a real danger, tell them to consider whether there are any immediate actions that can be taken to correct the problem and allay the employee’s concerns, e.g., disinfecting a piece of equipment recently used by a worker who tested positive for COVID-19.