As the COVID-19 pandemic continues to disrupt many aspects of life in the United States and around the world, many businesses are reopening and, as a result, workers are returning to their jobs and adjusting to this new normal. In the face of these changes, workers and employers are left wondering how to maintain safe working conditions and what their obligations are when it comes to ensuring that safety as the virus continues to spread at an alarming rate. As the situation develops, this guide provides a roadmap for how the current crisis is governed by new and pre-existing workplace safety laws.
The Occupational Safety Act (known as "OSH") is a federal law that is governed by the Occupational Safety and Health Administration (known as "OSHA"), designed to protect the safety of workers in their workplace. Though the OSH has many different components, the overall purpose of the law is to ensure that employers keep workplaces free of known dangers or hazards. Common hazards addressed by the act include:
Given that COVID-19 presents a new and unusual challenge, the OSH Act does not directly address the disease. However, OSHA and the Center for Disease Control (known as the "CDC") have some general guidelines dictating when and how workplaces must recognize and address hazards, work standards, and steps that must be taken to minimize the spread of disease.
When the OSH Act was first passed by Congress in 1970, it essentially had the effect of replacing the existing state-level workplace safety laws. Nevertheless, states are still able to enact their own safety and health programs if they offer the same or better worker protections than the OSH Act. Nearly half of the states have done so and more might be on the way as the pandemic continues. More information about these state-level laws is on the OSHA website. For the most part, worker protections are similar, if not identical, to OSHA guidelines.
If an employer fails to adequately address a worker's safety concerns, the worker is able to file an OSHA complaint. The worker can choose to attach their name to the complaint or file anonymously without penalty. In addition to this federal bureau, many states have their own workplace safety programs. For workers in these states, they may file a workplace safety complaint on their state workplace safety agency's website. Once OSHA or a state agency receives a complaint, they may then take further action including conducting workplace inspections and interviews, removing workers from a hazardous environment, or requiring the employer to implement new safety standards before workers are allowed to resume working.
Since this situation is developing quickly and many government agencies are working to figure out how new concerns can be addressed by existing laws, it is difficult to predict exactly how these claims will play out. However, as with all reporting of workplace safety concerns, a worker's chance of success with their complaint increases dramatically if they are able to document their concerns as thoroughly as possible. These concerns can be documented through photographs, videos, emails, and statements from co-workers.
Under the OSH Act, employers are prohibited from firing, disciplining, or retaliating against employees who make complaints or concerns about workplace safety. The National Labor Relations Act also offers some protection and guidance when it comes to addressing workplace safety. Situations will differ on a case by case basis, but common safety issues that may come up during the pandemic include employers failing to provide necessary safety gear, protection equipment, and disinfection procedures.
According to the OSH Act, workers have the right to refuse work if the employee has a reasonable belief that an imminent danger exists in their workplace. The OSH Act defines an "imminent danger" as one that presents an immediate and serious safety threat. Employees may refuse to work under this law if:
Further, the employee must follow all of these steps to qualify for refusal to work under the OSH Act:
In response to concerns of imminent danger, many employers are working to amend existing Employment Agreements (using an Employment Agreement Amendment) or policies in their Employee Handbooks to directly address what they will be doing to protect employees from danger and what they deem to be the scope of their liability. Remote Work Agreements are also becoming more and more common as employers decide that the danger of having employees work in person where they might be exposed to the virus outweighs any possible benefit of in-person work.
Recently, OSHA published specific guidelines on preparing workplaces to operate safely during COVID-19. One significant element of these guidelines is the categorization of the risk of worker exposure to the virus depending on the type of employment. Workers who are categorized as having a "very high risk" of exposure to the virus include:
Workers who are categorized as being "high risk" include:
"Medium risk" jobs are those that require close and/or sustained contact with the general public or those who may be infected with COVID-19. Employees are considered "low risk" if they don't have frequent and close contact with coworkers and the public.
Being able to make a successful case for refusing work will likely be dependent upon the risk of COVID-19 exposure as determined by OSHA, what the employer has failed to do, and how well the claim has been documented by the employee. If the employer has not implemented recommended basic COVID-19 safeguards, such as social distancing and mandatory wearing of face masks, and the employee works a job that has a very high or high risk of exposure, the employee can make a good case for refusing to work.
For example, an in-home hospice nurse who is forced to work with COVID-19 patients performing procedures that could lead to the aerosolization of the virus without adequate protective gear provided by their employer could make a good argument that an imminent danger exists that cannot be rectified through normal OSHA complaint procedures. By contrast, there is the situation of someone working in a low-risk category whose employer follows most, though not all, of the recommended safety guidelines. That employee would be well within their right to express their concerns to their employer and file an OSHA complaint if they deem it necessary. However, they probably could not refuse to work without potentially facing a penalty or putting their job in jeopardy.
For employees who are refusing to work due to the imminent danger in their workplace and their high level of risk to exposure, they can request a formal Leave of Absence Agreement from their employer as their employer works to correct their concerns.
Although Coronavirus doesn't seem to be going away any time soon, agencies that protect the safety of employees in their workplaces are working hard to accommodate this new concern through new and pre-existing laws and policies. As described above, employees do have access to recourse if their employer is not appropriately addressing the threat posed by COVID-19.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.