Can Employees Refuse to Return to Work Because of COVID-19?

The National Law Review (May 27, 2020): Parts of the country have begun the process of returning to work, in places where COVID-19 infection rates have flattened or shown a decline. But the risk of becoming infected with COVID-19 remains, and some employers may be faced with parts of their workforces refusing to return to work or to perform certain assignments, citing the health risk. What are employers’ options with respect to such employees? There are both legal and practical considerations.

From an OSHA Perspective

Employees may claim that working in an environment where COVID-19 is a potential hazard remains a health risk so dangerous that they have a right to refuse to work. The Occupational Safety and Health (OSH) Act protects employees from retaliation in certain circumstances when they refuse to perform work in “imminent danger” situations. According to Occupational Safety and Health Administration (OSHA) guidance, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee “asked the employer to eliminate the danger, and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here 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.”

It is not clear whether COVID-19 rises to the level of an “imminent danger.”