This past week, the Center for Disease Control issued new guidelines for when an essential employer should permit a critical infrastructure employee to return to work after a coronavirus exposure here.
The CDC now recommends that an asymptomatic employee who has been exposed – defined as a household contact or having close contact within 6 feet of an individual with confirmed or suspected coronavirus for up to 48 hours before the individual became symptomatic – can return to work as long as they are asymptomatic and take other steps:
Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue face masks or can approve employees’ supplied cloth face coverings in the event of shortages.
Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
Disinfect and Clean Work Spaces:: Clean and disinfect all areas such as offices, bathrooms, common areas, and shared electronic equipment routinely.
Moreover, the CDC reminds employers to immediately send home any employee who becomes sick during the workday, after which workspace surfaces should be cleaned and disinfected. The CDC also recommends contact tracing of people with whom the sick employee came in contact (within six feet) during the time the employee had symptoms and 2 days prior. According to the CDC, “others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.”
On a related note, we have received several inquiries about what action can an employer take when a healthy employee refuses to come to work because of a fear of infection? The short answer: it depends.
As a general proposition, an employee’s refusal to report to work would typically be a clear ground for discipline or termination, however, there are several issues that arise during a pandemic that an employer should consider prior to taking any type of adverse employment action:
- OSHA Laws and Guidance: Employees are only entitled to refuse to work if they believe they are in imminent danger. Under Section 13(a) of the Occupational Safety and Health Act, an “imminent danger” includes “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.” The inquiry into whether a work refusal is protected is fact and context specific, turning on the nature and imminence of the danger under the circumstances and the reasonableness of the employee’s belief. An employer faced with an employee who refuses to come to work should proceed cautiously to avoid a possible retaliation claims.
In March 2020, OSHA published Guidance on Preparing Workplaces for COVID-19, outlining steps employers can take to help protect their workforce. OSHA has divided workplaces and work operations into four risk zones, according to the likelihood of employees’ occupational exposure during a pandemic. These risk zones are useful in determining appropriate work practices and precautions.If there is no evidence of exposure, or the exposure does not impact all employees, then, the employer will likely have a much stronger argument for insisting that an employee come to work.
NLRA: Section 7 of the National Labor Relations Act (NLRA) 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, if you have an employee who is agitating on behalf of the safety of the employees, that an employee may have an argument that he is engaging in protected activity.
State Law: Some states provide statutory protections to whistleblowers geared to promoting public health and safety. For example, New York, Section 740(2) of the Labor Law provides a cause of action for whistleblowers who refuse to participate in an activity in violation of law, rule or regulation, “which violation creates and presents a substantial and specific danger to the public health or safety.”
Workplace Morale and Public Relations: Aside from the above-referenced legal issues, an employer should consider the impact that taking disciplinary action against an employee who refuses to come into work would have on workplace morale and the possibility of lost goodwill due to negative treatment by the press. Depending on the employees’ circumstances and the employer’s financial constraints, it may be advisable to allow employees to use sick leave and other paid time off as well as allow remote work where possible.
In short, employees do not have the right to refuse to come to work unless they believe they are in imminent danger. But an employer should proceed with caution prior to disciplining or terminating an employee who refuses to come into work during a pandemic. The employer’s cautionary approach should include an assessment of the employer’s business needs, workplace safety issues, and the legal and non-legal risks presented by an employee’s refusal to work.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com
Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]