Question:

We are an essential business where there’s a shelter-in place-rule and an employee is refusing to work as they say it’s not safe. Can we discipline them?

Answer:

This is certainly a difficult situation to be in. We recommend extreme caution in disciplining or terminating an employee who refuses to work in a location that has shelter-in-place rules in effect, as it poses several types of legal risk. Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. In that case, you would be able to enforce your usual attendance policies. However, under the current circumstances, where COVID-19 cases are increasing and many cities and states are implementing drastic public health measures to control spread of the virus, we think it would be difficult to show that employees have no reason to fear coming in to work, particularly in a location with a shelter-in-place rule.

Provide Reasonable Accommodation

Employees who are in a high risk category — either because they are immunocompromised or have an underlying condition that makes them more susceptible to the disease — should be granted a reasonable accommodation under the Americans with Disabilities Act (ADA) and/or state law. Employees who live with someone who is at high risk should be granted a similar accommodation. It would be a reasonable accommodation under the circumstances to allow the employee to work from home or take a non-working leave, if working from home is not possible.

Under OSHA rules, an employee’s refusal to perform a task will be protected if all of the following conditions are met:

  • Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so;
  • The employee refused to work in “good faith.” This means that the employee must genuinely believe that an imminent danger exists;
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There is not enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

No Punishment or Retaliation for Raising Safety Concerns

An employer cannot retaliate against an employee for raising a safety concern. Additionally, employees who won’t work because of safety concerns may be considered to be engaging in protected concerted activity under the National Labor Relations Act (NLRA) if they have a “good faith” belief that their health and safety are at risk.

Incentivize Employees Instead

Instead of disciplining employees who express fear at this time, we recommend you consider methods to encourage employees to come to work and to help put their minds at ease. Consider emphasizing all of the safety methods you have put in place (e.g., scheduled hand-washing, frequent disinfection of surfaces, social distancing rules, reduced customer capacity, staggered shifts, or more extreme measures if warranted by your industry). We recommend relying heavily on the Centers for Disease Control and Prevention (CDC) guidelines and local health department information in establishing safe working conditions at this time. You might also consider offering premium pay or additional paid time off (PTO) for use in the future to employees who must come to work.