Once businesses are permitted to re-open, what happens next? What if some employees ask to delay their dates of return, or seek to remain on leave?
Employers are making decisions on employee treatment that will have longstanding implications in the aftermath of COVID-19 — that some say may lead to a shift in bargaining power from employers to employees. The following are common questions employers will confront with their employees during the COVID-19 crisis.
A. Can employees who perceive a danger of contracting coronavirus refuse to work?
The answer lies in the Occupational Health and Safety Act (OSHA), where under the Act, an employee would not have the right to leave a job because of potential unsafe conditions, though if particular requirements were met under the Act, the employee may have the right to refuse to perform a task.
OSHA Refusal to Perform Unsafe Work/Section 502 of Taft Hartley Act
Section 11(c) of the Occupational Health and Safety Act (the Act) makes it illegal for an employer to discharge or discriminate against any employee because the employee has:
- Filed any complaint under or related to the Act;
- Instituted or caused to be instituted any proceeding under or related to the Act;
- Testified or is about to testify in any proceeding under the Act or related to the Act; or
- Exercised on his own behalf or on behalf of others any right afforded by the Act.
Although some employees assume they have the right to walk off the job if they feel it is unsafe, according to Occupational Safety and Health Administration (OSHA) regulations, “as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace.” Section 12(b)(1). An employee’s right to refuse to do a task is protected only if all of the following conditions are met:
- Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; and
- The employee refused to work in “good faith.” (employee must genuinely believe that an imminent danger exists); and
- A reasonable person would agree that there is a real danger of death or serious injury; and
- There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Under Section 13(a) of the Act, an “imminent danger” is defined as:
… any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.
The general consensus among employers and practitioners is that the coronavirus is not an imminent danger or “abnormally dangerous” condition in most workplaces, and many employees will not be able to refuse to work simply for fear of contracting the virus.
B. Can employees demand PPE or refuse to work because of a disability?
Employees who qualify as disabled may claim to be particularly susceptible to infection and thus require a modification of their workplace or working conditions as an accommodation. Once an employee makes a request for an accommodation, it is incumbent on the employer to engage in an interactive process with the employee to assess the employee’s particular limitations, and determine whether an accommodation can be provided.
Some steps that employers have taken to accommodate employee requests in this area are:
- Providing enhanced PPE;
- Increasing social distancing and sanitation measures;
- Modifying schedules (i.e. rolling or staggered shifts); or
- Allowing options to work from home.
In most circumstances, an employee cannot simply refuse to work because of a disability, but it might be reasonable to grant a temporary leave of absence. If an employee is unable to work because a disability puts the employee at too great a risk to physically appear at the jobsite, the employee may also be entitled to Emergency Sick Pay under the Families First Coronavirus Response Act and job protection under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).
C. Dealing with Emergency Paid Sick Leave and Expanded Paid Sick Leave
The U.S. Department of Labor (DOL) released regulations and updated its FAQs on the Emergency Paid Sick Leave (EPSL) and Expanded Paid Sick Leave provided under the Families First Coronavirus Response Act (FFCRA). The U.S. Department of Labor provides compliance assistance to employers and employees on their responsibilities and rights under the FFCRA. Here are some of the topics discussed:
Quarantine or Isolation Orders
- An employee may take leave if unable to work because he or she is subject to a Federal, State or local COVID-19 quarantine or isolation order. The regulators explain this reason for leave stating: “Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.”
- However, “an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein. The question is whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.”
- But if the employer does not have work for the employee, then the employee is not eligible for leave as the employee would be unable to work even if he or she was not required to comply with a quarantine order.
Employees Caring for Individual Subject to Quarantine
- This provision only applies if the employee would otherwise be able to work for the employer. Additionally, “the employee must have a genuine need to care for the individual.” The employee must have “a personal relationship” with the person being cared for. “Rather, the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.”
Employees Caring for Son or Daughter
- Employees may take leave because their son’s or daughter’s school or place of care has closed or a child-care provider is unavailable for COVID-19 related reasons.
- The regulations clarify that there must have been work for the employee and “the employee needs to, and actually is, caring for his or her child ”.
- Generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child-care provider — is available to provide the care the employee’s child needs.
Employees who Request Intermittent Leave
- Employees may not take leave intermittently, absent agreement by the employer. The agreement should include the increments of time in which the leave may be taken.
- However, for employees physically reporting to work, this leave may be taken intermittently only when used to care for the employee’s son or daughter as described above, and then only with the employer’s agreement.
Employees who are Advised to “Self-Quarantine”
- Paid sick leave is available for employees who are advised by a “health care provider” to self-quarantine.
- For the purposes of this provision, the DOL clarified that “health care provider” means a licensed doctor of medicine, nurse practitioner, or other healthcare provider permitted to issue a certification for purposes of the FMLA.
See our COVID-19 Quick Reference page for additional articles.