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Employees Who Refuse to Work Due to Fear

April 21, 2020

Recently, some workers who work in jobs that have been deemed to be essential are expressing fear about coming to work. When this situation arises, employers of essential workers need to take into consideration the understandable concerns an employee may have, and weigh that against staffing needs in order to remain operational. This can be a difficult balancing act and requires a number of considerations.Families First Coronavirus Response Act (FFCRA) The first consideration is whether the employee may be entitled to paid sick leave under the FFCRA. This obligation applies to employers with fewer than 500 employees.  If the employee has an underlying medical condition, and has obtained an opinion from her health care provider that she should self-quarantine because she is particularly vulnerable, that may trigger the obligation to provide paid sick leave, at least for the 14 days of sick leave that is provided under the Act. The doctor’s advised quarantine must prevent the employee from working on-site or teleworking in order to qualify for paid sick leave.  In the case of health care provider employers, and some employers with fewer than 50 employees, there are exemptions available under FFCRA which means that the employer may not be required to provide the paid sick leave.An employer is entitled to require the employee to provide documentation of the doctor’s advice which prevents the employee from working. However, employers are free to relax this obligation, especially due to the difficulty an employee may have in getting in to be seen by a medical provider in order to obtain such documentation. OSHA The second factor is whether legitimate safety concerns are being raised by the employee. Employees may express concerns about the safety of returning to work, especially in certain “essential” businesses such as health care settings, nursing homes or food processing facilities, where outbreaks have been occurring. Generally, under the Occupational Safety and Health Act (OSHA), an employee has the right to refuse to work if they have a reasonable basis for believing that going to work would place them in imminent danger. This requires the belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time.In order for the employee to rely on this belief, the belief must be based on facts. It is not enough that the employee has a general anxiety about possibly contracting the illness at work. If a reasonable, fact-based concern is expressed, and the employer cannot adequately address the concerns to alleviate the risk, then the employee can rightly rely on this basis for not coming to work. However, if the employer is following all of the current guidelines from the CDC and OSHA for safe workplace practices, then the employer has an argument that the employee’s fear is not founded in fact.Keep in mind that employees continue to have the right to discuss concerns about working conditions under the NLRA, and employees who join together to discuss such good-faith concerns and raise them with the employer are protected from discipline under that act.ADA Finally, employers need to consider whether the ADA applies and may require employers to consider reasonable accommodations for employees who request accommodations. These may take the form of changes in the work environment, allowing the employee to work from home or granting additional time off.  If the employee has an underlying medical condition that places him at greater risk from COVID-19 complications, and if the employee can properly document the underlying condition, this may constitute a disability under the ADA. If this occurs, then the employer may need to go through the interactive process in order to determine if a reasonable accommodation would allow the employee to continue to work. This could mean possibly allowing the employee to work from home, or granting a leave of absence, with the opportunity to return to work at a later date.CONCLUSION Employers are walking a difficult tight wire, trying to keep their business operational and viable, while still respecting and protecting rights of vulnerable employees. When faced with an employee who expresses fear about continuing to work, a thoughtful analysis and response is the best strategy. Our attorneys are well-versed in navigating these issues and are always available for consultation to assist you through this process.


Mar 19, 2020

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