When Employees Refuse to Work Due to COVID-19

When Employees Refuse to Work Due to COVID-19

There is an increasing likelihood that as the numbers of COVID-19 cases increases, the nervousness of your Team Members will exponentially become heightened.

Family, friends and the news itself will likely influence the decision of someone on your team to ask themselves: “How much am I putting myself at risk by going to work today?”

That leads to several questions that have us rushing to the OSHA and Department of Labor websites for guidance. Thankfully there are some clear guidelines for employers along with a good dose of ‘common sense’ rules that I would recommend.

Most notably, OSHA clearly protects employees from retaliation if they refuse to work in “imminent danger” situations. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm.” So, is COVID-19 an imminent danger? It’s not clear…yet…and it becomes more complicated for doctors. Secretary of Labor Eugene Scalia has stated that “Coronavirus is a hazard in the workplace. But it is not unique to the workplace or (with the exception of certain industries, like health care) caused by work tasks themselves.” He adds “The virus cannot be viewed in the same way as other workplace hazards.” So does a dental practice, in this case, count within the scope of healthcare? We don’t know.

The fact is that you cannot guarantee health for your employees, in the middle of a pandemic or during what we now refer to as the “old normal.”

If you dive into OSHA a little further, the employee can refuse to work if all of the following conditions apply; a) the employee has asked the employer to eliminate the danger and the employer failed to do so, b) the employee refused to work in good faith – a genuine belief that an imminent danger exists, c) a reasonable person would agree that there is a real danger and d) there isn’t enough time to get it corrected.

Therefore, I think you do have the ability to tell your employees they need to work. But would I? That’s a categorical NO from me. The effects of negativity are toxic enough, but the fallout if the employee does fall victim will haunt you forever, no matter when or where they became infected. My advice would be to let them not work but capture that refusal in writing and maintain all communication via documentation. To ward off the danger of employees cherry-picking when they work, say no. You can’t be expected to allow ‘self-scheduling’ if you haven’t changed your sanitization standards and nothing material has changed.

Two questions remain. Do you have to pay an employee who refuses to work, and can you terminate their employment? To the first question, it’s a definite no. You are under no obligation, provided that you are OSHA compliant. As for termination, I turn to Sean Crotty, a labor and employment attorney in Detroit, who believes that it would “constitute a resignation from employment.” The only danger that remains is hesitation. Determine your policy now. Don’t allow, ergo approve, two weeks of not working and then terminate…and if you do…don’t be surprised by the lawsuit that follows.

Sean Barnard is a Certified Professional and member of the Society of Human Resources Management. The views and opinions expressed in this article are those of the author and are not to be considered legal advice.

Sean Barnard, SHRM-CP
Sean Barnard is a public speaker, corporate trainer, consultant and certified human resources professional.

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