Amid increased community transmission and “stay-at-home” orders, employees may fear contracting the virus if they leave home and may refuse to report to a workplace as required.

Generally speaking, employees do not have the right to refuse to work due to health and safety concerns unless certain relatively stringent conditions are met.

Under OSHA guidance, which applies to most private-sector employers, employees are entitled to refuse to work only if they believe in good faith that they are in “imminent danger.”  Specifically, a work refusal is protected only if:

• Where possible, the employee has asked the employer to eliminate the danger and the employer failed to do so;
• S/he genuinely believes that an “imminent danger” exists;
• A reasonable person would agree that there is a real danger of death or serious injury; and
• Regular enforcement channels are not sufficient. “Imminent danger” requires an “immediate or imminent” “threat of death or serious physical harm”.

This inquiry is fact- and context-specific, turning on the nature and imminence of the danger under the circumstances and the reasonableness of the employee’s belief.

As a result, many workplaces taking precautionary measures against the spread of COVID-19 are unlikely to meet the elements required for an employee to refuse to work.

An employee’s blanket refusal to come to work due to a general fear of contracting COVID-19, without more, will in many contexts be unlikely to meet the OSHA standard.

Depending on the nature of the work and the workplace, however, there may be some contexts in which employee concerns about COVID infection are more likely to meet the OSHA standard.

If an employee refuses to work due to unfounded health and safety concerns, the employee may be subject to discipline, including termination.

Recommendations:

• Ensure your workplace has a plan to meet CDC and Cal-OSHA requirements maintain a safe workplace during this pandemic, and that you follow the plan.
• Communicate that plan to all employees before reopening or requesting a return to work.
• Interact with any employee refusing to return to work and ask what specifically they feel might be an imminent danger.
• Take steps to accommodate the employee’s requests, within reason considering your business environment.
• Be sure you make a good faith effort to work with the employee and document your efforts to work with the employee.

If we can answer any questions or guide you through a particular situation, please don’t hesitate to contact Infinium HR.