By Matthew G. Gallagher
The pandemic has brought with it a host of legal issues surrounding workplace health and safety issues. One of those issues is whether and under what circumstances an employee’s fear of infection constitutes a protected reason for refusing to come to work. Employee fear of infection impacts employers in nearly every industry and employment setting and, as infection rates continue to rise in many areas of the country, employers will continue to encounter requests for accommodations based on employees’ fears of contracting the virus.
While a generalized fear of contracting the virus, standing alone, generally will not support an employee’s request for accommodation, there are circumstances in which an employee’s refusal to work may be protected. This article addresses the ways in which employers can mitigate the legal risks associated with refusals to work based on fears associated with the virus and employers’ potential leave and accommodation obligations in connection with these increasingly common scenarios.
OSHA Standards and An Employer’s Affirmative Legal Duty of Care to Employees
Employers are bound by the general duty of care established by the Occupational Safety and Health (OSH) Act, which requires employers to provide a safe and healthy workplace for all employees. Under this general duty of care, employers must ensure that workplace conditions meet or exceed the applicable safety and health regulations in the state where they are located. In addition to this legal duty, employers have a vested interest in ensuring employees feel safe and comfortable at work. Uncomfortable workers are likely to be distracted and disengaged, which may negatively impact productivity or customer service and lead to other unsafe working conditions.
Some OSHA requirements may apply in preventing occupational exposure to COVID-19. Among the most relevant are the Act’s General Duty clause, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” and Personal Protective Equipment (PPE) standards, which require using gloves, eye and face protection, and respiratory protection. Moreover, OSHA-approved State Plans may have different or more stringent requirements. To limit exposure to OSHA claims, employers must take reasonable steps to assess and mitigate the risks posed by COVID-19, including staying informed of the facts and practices recommended by the CDC and World Health Organization, providing and training employees on COVID-related workplace safety rules and the use of PPE, assessing and implementing appropriate administrative and engineering controls, and timely and effectively responding to employee complaints. Against this backdrop, a generalized fear of contracting the virus will not insulate an individual employee’s refusal to work from adverse employment action.
What if an employee fears coming to work based on an identifiable high risk of severe illness due to COVID-19?
If an employee cannot work (either at the worksite or remotely) or is limited in their ability to work because of an underlying health condition, the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), and similar state or local laws, likely protect the employee. Thus, if an employee refuses to work because of their condition, an employer should treat that request or refusal as a request for accommodation under the ADA and equivalent state or local laws. Such a request triggers the employer’s obligation to engage the employee in the interactive process.
In doing so, employers should be aware that some orders and public health guidance may require that employees who are part of the “high-risk” population be afforded specific accommodation(s). Prior to the pandemic, an employer could rely reasonably on the ability to seek documentation during the interactive process for disabilities that were not obvious. During the pandemic, however, there may be limits on an employer’s ability to seek documentation or other information from a health care provider to verify an employee’s job-related restrictions and/or need for accommodation. Employers must be flexible regarding their expectations about, and engagement in, the interactive process and stay abreast of specific return to work requirements imposed by these orders and public health guidance that might impact an employer’s approach to the interactive process.
Ultimately, if there are no reasonable accommodations that enable the employee to return to work and the employee cannot perform their essential job functions remotely, the employee may qualify for FMLA (or an equivalent state or local law) if they meet the law’s eligibility criteria and their condition is an FMLA-qualifying “serious health condition.” Assuming an employee meets the eligibility criteria, the employer must analyze on a case-by-case basis whether the employee has a “serious health condition” for which leave can be taken. Given potential limited access to a health care provider, an employer may also need to approach certification deadlines with more flexibility by allowing a longer period for submitting certification.
What if employees do not want to work because they live with or are in contact with family members who are considered to be at risk of severe illness due to COVID-19?
Under the ADA and applicable state and local disability laws, an employer’s obligation to reasonably accommodate an employee is limited to accommodating an employee whose own health condition limits their ability to perform the essential functions of their job. There are, however, some laws that permit employees time off to care for a family member who is ill.
The FMLA and its state or local law equivalents provide employees with protected time off to care for certain family members who are ill or need health care-related treatment. An employee’s eligibility for time off for a family member’s “serious health condition” must be evaluated on a case-by-case basis, just as must be done for the employee’s own condition. Mandatory paid sick and safe time (PSST) laws also allow an employee protected time off from work to care for a family member. During the COVID-19 pandemic, some enforcement agencies have indicated that they construe their respective PSST laws as permitting an employee to take PSST to care for a family member who has heightened vulnerability to COVID-19 (rather than actually being ill with COVID-19).
To the extent that an employee is not covered by FMLA (or state and local equivalents) or PSST laws, but wants to avoid the workplace out of a general fear of being exposed to the virus and potentially infecting a family member, such absences are not necessarily protected by more generally applicable laws. However, executive orders and/or accompanying public health guidance issued may require more flexibility in this regard, as well. Therefore, employers should review the various laws providing protected time off to care for a family member and consult any applicable orders or public health guidance, which may indicate an obligation to accommodate or a preference for permitting telework where possible. Additionally, regardless of the basis of employees’ fears, where two or more employees engage in a concerted refusal to work, employers should be conscious of potential protections afforded employees under the National Labor Relations Act.
As COVID-19 will impact employment for the foreseeable future, it is likely that many employers will encounter employees reluctant to work based on a fear of infection, particularly as infection rates continue to rise. Employers with questions about what accommodations and leaves must be provided to these employees should consult counsel.
Matthew G. Gallagher, Shareholder
Littler Memphis
mgallagher@littler.com
www.littler.com