COVID 19 Q&A PT 3: Can an employee refuse to come to work because of fear of Coronavirus?

Today, however, we are doing Part III of our COVID-19 Q&A, so we’re gonna be talking about Coronavirus. Today’s Part III is all about, basically, employee’s right of refusal to come to work, what sort of things you have to deal with in terms of unreasonable expectations of security equipment. How does that work? We’re going to be going in there now. 

Part I. We talked about telecommuting guidance.

Part II. We went into what actually needs to happen if someone is sick or suspected of having the virus.

Tomorrow or on our next episode, we will be talking about the, “How group health insurance coverage section Coronavirus? What sort of ways can you take advantage of that?”

Part V. We’re going to talk about the employees who are calling in sick. So we’re about Wage and Hour related issues related to Coronavirus. Do we have issues with how are we going to pay these people when they’re working from home? Those sorts of issues.

Finally.

Part VI. We’re gonna talk about employer liability. Probably the least important part of this but we do need to cover it. Are you on the hook if your employees get sick at work from coronavirus? 

So, let’s dive into Part III here. 

Can an employee refuse to come to work because of a fear of infection? 

This question and others like it we get through our social media and from our clients directly who are needing help. If you want to submit a question of your own, please check us out on Facebook, LinkedIn, Twitter @peopleprocesses. We’d love to hear from you there. We really appreciate subscribers there. It makes us feel like someone’s out there listening. And we’re just not talking to the ether. So take a look. Let us know if there’s anything we can help you with, ask any questions. 

If an employee refuses to come to work because of their fear of infection, the question is like, “Is that like a disciplinary issue?” Right, I need you at work. Well, employees are only entitled to refuse to work if they believe they are in imminent danger. This is Section 13(a) of OSHA. This is the Occupational Safety and Health Act, not the OSHA administration. It defines “imminent danger” to include, “any condition or practices in any place of employment which are such that a danger exists which can 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.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present. Exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” 

So, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to that threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work now. Once again, I guess I should say this is being recorded on March 14 2020. If you’re listening to this in April, things are going very badly, may be different. But right now, the conditions aren’t there. This guidance is general and employers are going to need to determine when this unusual state exists in your workplace before we’re determining whether it is permissible for employees to refuse to work. 

In addition, Section 7 of the NLRA. The National Labor Relations Act extends broad-based statutory protections to those employees (in union and non-union settings) to engage in “protected concerted activity from you to mutual aid or protection.” So, just keep in mind, such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it’s been extended to include action, expressively undertaken on behalf of coworkers. So if you got a real loud employee who is agitating on behalf of the safety of the employees. If you want to put it very negatively, that’s likely a protected act. 

So keep in mind that you don’t want to be in a position where you just want to not punish behavior that the NLRB might consider organizing activity, “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” “joining with co-workers to talk to media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity. So that’s a little different. But just keep that in mind as a side note, in general, though they can’t refuse to work, that can be a disciplinary issue. 

Now, can employers in the United States refuse an employee’s request to wear a medical mask or respirator? 

Yes, under most circumstances, I have a link on the website peopleprocesses.com where we go into the justification a bit more under the OSHA respiratory protection standard, which is a link on our site 29 C.F.R. 1910.134. It covers the use of most safety masks and the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determine that such respirator use will not in itself create a hazard” (29 C.F.R. 1910.134(c)(2)). In almost all work situations, however, there are no currently recognized health or safety standards – even when employees work near other people and thus no need for a mask or respirator. 

WHO has stated that people only need to wear face masks if they are treating someone who is infected with COVID-19. WHO has also said that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against COVID-19 and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator. So you can refuse that request. 

Now, can an employee refuse to work without a mask? So they say, “I want to wear a mask” and you’re like, “No, that would be very strange. You can’t wear a mask if you feel sick, don’t come to work, but otherwise, you know, come to work.” And then they say, “Alright, well, I’m not coming to work unless I can wear a mask.” 

Can an employee refuse to work without a mask? 

OSHA has addressed this common question of whether employees can simply refuse to work in unsafe conditions. The safety agency file provided the following guidance, which wouldn’t require the use of mask or respirator in most situations. An employee’s right to refuse to do a task is protected if all of the following are met:

1. Where possible, you’ve asked the employer to eliminate the danger and the employer failed to do so;

2. You have refused to work in “good faith.” That means you must genuinely believe that an imminent danger exists;

3. A reasonable person would agree that there is real danger of death or serious injury; and

4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through the regular enforcement channels, such as requesting an OSHA inspection. 

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of COVID-19 or the flu for that matter. The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of employees, it’s within the discretion of the employer to allow the employee to do it or not. Accordingly, you are well within those OSHA standards to say no, denying employees requests to wear a surgical mask in pretty much every situation. Again, now if you’re a hospital, and you’re treating COVID-19 patients, that’s different, right. But in most cases throughout the United States, you don’t have to allow it. 

Absent a legally recognized disability, unique physical condition or an occupation where employees work directly with those impacted by conditions such as COVID-19, you’re generally not required to allow them to wear masks at work. 

Okay. All right. Now, I want to very briefly since we’re talking about, let’s say an employee comes, he says, “Hey, I want to wear a mask, or I’m wearing a mask now and you can’t make me take it off.” You’ve explained that, “Hey masks are not necessary in this job. They say it’s not. There’s no reason to suspect that this is it, you’re in any danger being here more than you would being at Walmart right now shopping.”

Though you don’t need a mask, you may want to be able to respond with Steps you can take now to minimize the risk of transmission.

So now I’m going to talk about things you can actually do besides wearing a mask that would actually help. So repeatedly, aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu. For annual flu, SARS, avian flu, swine flu and now COVID-19. The best way to prevent infection is to avoid exposure. So the messages you should be given to employees are:

• Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use alcohol-based hand sanitizer. 20 seconds feels like a long time. Come up with a song. Sing it while you’re washing your hands. That’s 20 seconds long.
• Avoid touching your eyes, nose, mouth with unwashed hands. 
• Avoid close contact with others, especially those who are sick. 
• Refrain from shaking hands with others for the time being. 
• Cover your cough or sneeze with a tissue and then throw that tissue in the trash. 
• Clean and disinfect frequently touched objects and surfaces; and
• Stay home when you are sick. Go away if you are sick. 

Okay, as an employer, you should be doing the following:

• Ensure that employees have ample facilities to wash their hands including water and soap, and that third-party cleaning/custodial schedules are accelerated. 
• Evaluate your remote work capabilities and policies (see that earlier podcast episode where we talked about that). Teleconference or use other remote work tools in lieu of meeting in person if that’s available. 
• Consider staggering employee starting and departing times, along with lunch and break periods, to minimize overcrowding in common areas such as elevators, break rooms, those sorts of things. If you’re in an environment that has it. 
• Have a single point of contact for employees for all concerns that arise relating to health and safety, highly recommended you need a health and safety officer anyway. If you’re, if you’re a very small company, that’s okay. Tell people, the person to contact should be probably the owner in that case: and
• Follow updates from the CDC and World Health Organization regarding additional pre call precautions. 

We have linked on our website, OSHA’s Guidance on Preparing Workplaces for an Influenza Pandemic, which gives some additional kinds of steps you can take. More specific ones like engineering things around air conditioning, but also personal protective equipment. It just really goes in a lot more depth linked right on our website @peopleprocesses.com. 

I hope this helped you answer the question of whether an employee can refuse to come to work because of their fear of Coronavirus and what you can do in response. Thank you for taking the time to listen. You can find us on Facebook LinkedIn, Twitter, Instagram and @peopleprocesses.com. On peopleprocess.com bottom right hand corner, there’s a chat button, bright green. We’re open regular business hours, but leave a message overnight. I’ll reach back out to you. I’d love to hear from you. If you have any questions or need to go by or some help around this, we have staff standing by to help you. We’re just doing that right now. There’s no charge. You just have questions, ask, okay. Maybe the basis of a future podcast episode. I just reply to you via email. Whatever we need to do to help us is kind of our way of helping. If an employer is in a position where they’re not sure what to do, and they need some advice. Just reach out. We’ll help. Thank you for tuning in. Have a great day. Now go out there and get your work done.

Reference links here:

Yes, Guidance on Preparing Workplaces for an Influenza Pandemic 

COVID-19 Q&A Part I & II links here:

Part I – Should we send everyone to work from home with this Coronavirus?

Part II – I think an employee may be sick… what do I do?