The current COVID-19 pandemic is affecting nearly every aspect of life in America and across the globe. Unsurprisingly, this has a major impact on the workplace and raises many new legal issues with respect to the rights and obligations between employers and employees, and the need to maintain a safe working environment.
Generally speaking, an employer must keep the workplace free of recognized hazards, which include chemical, physical, biological, and ergonomic hazards. COVID-19, however, presents new challenges as it is unlike anything ever faced by the U.S. workforce, and therefore cannot be directly addressed under the current Occupational Safety and Health Act (“OSH Act”).
As a result, the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) have issued new general guidelines on standards in the workplace to help keep workers safe and minimize the spread of this deadly disease.
The OSH Act gives an employee the right to refuse to work if he or she reasonably believes an imminent and serious threat to their health and safety is present. In the context of COVID-19, this could mean that a worker is being exposed to a high risk situation of contracting the disease at the workplace, and the employer fails to implement appropriate safety measures to reduce that risk.
When determining what safety measures are appropriate, the new OSHA and CDC guidelines first classify the risk of worker exposure into four categories based on the type of employment:
- Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. Workers in this category include healthcare workers and morgue workers performing autopsies.
- High exposure risk jobs are those with high potential for exposure, which can include healthcare delivery, medical transport, and mortuary workers.
- Medium exposure risk jobs include those that require frequent and/or close contact (i.e., within 6 feet of) with the general public or people who are not known or suspected of being COVID-19 patients. This category can include people working in schools or high-volume retail settings.
- Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected, and do not require frequent, close contact with the general public. Workers in this category have minimal occupational contact with the public and other coworkers. Most American workers likely fall within this “lower risk” category.
Depending on which risk classification the type of employment falls under, the new guidelines establish the minimum safety precautions an employer should implement in order to protect workers from an imminent or serious threat of contracting COVID-19 at the workplace. For example, in workplaces where workers have lower risk of exposure, employers should implement policies and procedures that promote frequent and thorough hand washing by both workers and customers, require social distancing, maintain regular housekeeping practices, and establish flexible worksites (e.g. working remotely) and schedules (e.g. staggered shifts) if possible. Employers should also encourage workers to stay at home if they are sick, and immediately isolate people who have signs or symptoms of COVID-19. On the other hand, where workers have a high or very high risk of exposure, employers have a much higher standard to meet in order to limit the risk of infection. In addition to meeting the minimum standards required for the “lower risk” category, employers should also implement certain engineering controls such as using appropriate air-handling systems and creating isolation rooms for performing aerosol-generating procedures on people with known or suspected COVID-19. Employers should also provide workers with personal protective equipment (PPE) such as gloves, gown, face shield or goggles, and a face shield or respirator, depending on the specific job.
Whether an employee may legally refuse to work for COVID-19-related reasons, therefore, will likely depend on 1) which exposure risk category the job falls under, and 2) what safety precaution(s) the employer failed to implement. For example, a physician who is forced to perform cough induction procedures on a suspected COVID-19 patient without adequate protective equipment would almost undoubtedly be legally entitled to refuse to work.
However, since most Americans work in the “lower risk” category, an employee’s right to refuse to work may not be as clear. For example, if an employer is following some, but not all, of the safety guidelines, the employee might not be able legally protected from refusing to work.
Nevertheless, in order to limit the spread of this deadly disease, both employers and employees should be aware of their rights and obligations in the workplace. From the employee’s standpoint, if the employer is failing to take appropriate measures to limit the risk of contraction, they should express their concerns to the employer, document the failure(s) as much as possible, file an OSHA complaint if necessary, and, in cases of imminent exposure, determine if refusing to work is warranted.
From the employer’s standpoint, developing a disease preparedness and response plan is critical in not only protecting its employees, but also protecting the employer against potential liabilities for failing to provide a safe workplace. Developing and implementing such a plan will likely require that the employer stay abreast of developments and recommendations from federal, state, and local health and governmental agencies.
Both employers and employees should consult the new guidelines issued by OSHA and the CDC to help protect themselves and others against the spread of COVID-19. More information from OSHA and the CDC can also be found online at https://www.osha.gov/SLTC/covid-19/ and https://www.cdc.gov/coronavirus/2019-ncov/index.html.
Workplace safety amid the COVID-19 pandemic presents new, unique challenges to both employers and employees, which can create complex legal issues.
If you or your company have questions or a legal matter related to unemployment, employment or labor law issues especially during this pandemic, please contact Anderson Jones Attorneys by email or phone at (919) 277-2541.