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Can I be Fired for Refusing to Report to Work During the Coronavirus Pandemic?

Posted March 27th, 2020 by in Employment Law.

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We are largely in uncharted territory, but the answer may depend on factors such as the severity of the crisis in your location, what kinds of orders and directives (e.g. a stay-at-home or shelter-in-place order) are in effect where you live and work, the state and local laws in place, and the accommodations your employer is willing to provide to ensure worker health and safety.

Some states provide employees with a legal claim for being fired for refusing to go against a law or regulation designed to protect public health and safety. While every situation is specific, such protections might be deemed to include COVID-19 related orders.

The federal Occupational Safety and Health Act (OSH Act) requires employers to furnish each of their employees with “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 to [the] employees.” 29 U.S.C. § 654(a)(1). Employers must also “comply with occupational safety and health standards promulgated under [the act].” 29 U.S.C. § 654(a)(2). Employees, in turn, are obligated to “comply with occupational safety and health standards” and all applicable “rules, regulations, and orders issued pursuant to [the act].” 29 U.S.C. § 654(b). This can presumably include social distancing and shelter-in-place orders issued or adopted by the Occupational Safety and Health Administration (OSHA).

29 U.S.C. § 660(c) provides for a legal claim for an employee terminated “because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.” Claims must be filed with the Secretary of Labor within 30 days of the termination.

Refusing to report to work in order to comply with COVID-19 regulations and guidelines may be seen as an exercise of an employee’s and his or her coworkers’ right to a safe and healthful work environment. By reporting to work in violation of a government order, an employee places other workers at risk and potentially violates his or her obligations under 29 U.S.C. § 654(b).

Under interpretive regulations, § 660(c) does not typically provide employees with a right to walk off the job because of unsafe workplace conditions. In general, an employee must seek to address and correct hazardous conditions with the employer and then through OSHA or a comparable public agency. 29 C.F.R. § 1977.12(b)(1).  There is a limited exception to this rule:

However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.

The question then arises as to whether working through the Coronavirus presents an immediate enough threat of death or serious injury to qualify for such protections. The answer may be context-specific (e.g.: the nature of the work environment, whether the employee is in a high-risk category), but some legal observers on the COVID-19 crisis have expressed the position that most work conditions in the United States do not meet the threshold necessary to provide an employee a right to refuse to report to work. It remains to be seen whether an agency or court would take a sympathetic view of workers’ collective predicament or adopt a more narrow perspective that—in most situations—each employee faced with the decision on whether to come into work has a relatively small chance of contracting a virus with a low reported hospitalization and death rate.

Employees and practitioners should continue to pay attention to any orders or guidelines promulgated by OSHA, both as a general matter and with regard to their specific industries. See https://www.osha.gov/SLTC/covid-19/ If employers are violating specific OSHA rules, there is more likely to be a valid claim.

Some jurisdictions, however, provide greater protections and remedies than those offered by the federal OSH Act. Under these laws, employees need not be in imminent danger of death or serious injury. For example, New York State law protects employees who “object to, or refuse to participate in any activity, policy, or practice” “that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” NY Labor Law § 740(2). This would seem to include refusals to violate official stay-at-home or social distancing orders. Similarly, California labor law provides: “No employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including [the employer’s duty to furnish safe and healthful employment conditions], any occupational safety or health standard or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees.” Cal. Labor Code § 6311.

The New Jersey Conscientious Employee Protection Act creates particularly strong protections. It prohibits retaliation against any employee who “objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law … or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J. Stat. § 34:19-3(c).

On a broader level, some states have adopted common law (judicially-created) actions for wrongful termination in violation of public policy. It can certainly be argued that official stay-at-home and social distancing measures designed to prevent the spread of a global pandemic represent the type of strong public policy that would qualify for protection in many jurisdictions. If an employee is fired because of the employer’s unwillingness to comply with such orders, he or she may well have a valid legal claim.

In addition, employees who need to take leave from work because of the Coronavirus may be protected by laws such as the federal Family and Medical Leave Act (FMLA), state and local leave laws, and the new Families First Coronavirus Response Act which takes effect on April 2.

The new act provides for two weeks of paid sick leave for certain employees unable to work because of COVID-19 issues and an additional 10 weeks of paid family and medical leave for certain employees unable to work because of Coronavirus-related childcare obligations. See https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Ultimately, employees who are terminated or feel that their jobs are at risk because of the Coronavirus crisis should consult with a legal professional.

Andrew Melzer is a partner in the New York office of Sanford Heisler Sharp. Mr. Melzer is Co-Chair of the Firm’s wage and hour practice and has helped return millions of dollars of lost wages to employees in presuit negotiations, active litigation, and trials.
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