Discipline and Employee Rights During the Coronavirus
At-Will Employees versus Employees with Agreements
Employees at-will generally may be terminated at any time for any reason, except for an unlawful reason, as will be discussed below. Employees with employment agreements or who are subject to collective bargaining agreements can only be terminated for the causes that are specified in their agreements. So, the terms of those agreements must be examined carefully.
Under limited circumstances, OSHA regulations provide an employee with a right to refuse, in good faith, dangerous work. In order for the right to refuse to be protected, the work must expose the employee to a hazardous condition at the workplace that is a “real threat” of death or serious injury, evaluated using an objective standard of reasonableness under the circumstances. Before the employee can exercise the right to a good faith refusal, two other conditions must also be met. First, the employee must present his or her concerns about the hazardous condition to his or her employer and seek a correction. Second, assuming that the employer refuses to take any corrective action, there must be insufficient time to report the condition to OSHA and ask OSHA to investigate. If all of these conditions are met, the employee has the right to refuse to perform the work and would have a claim for discrimination if the employer should take some adverse action against the employee as a result.
What constitutes dangerous work and whether a refusal to work is in good faith are issues that depend entirely on the specific facts of each case. Take, for example, a healthcare worker who is 35 years old and in good health, who works at a hospital that has not yet received any COVID-19 patients. As the virus spreads, the hospital anticipates that it will receive infected patients, and the healthcare worker asks the hospital to provide a respirator, gown, and gloves, which OSHA recommends as the appropriate personal protective equipment (PPE). Despite its best efforts, the hospital cannot obtain the requested PPE because its suppliers are simply out of stock. When the healthcare worker refuses to come to work, the hospital explains that it does not currently have any COVID-19 patients, that the hospital follows industry standards for good ventilation to remove airborne disease from the hospital, and that it practices good hygiene measures along with all of the other recommendations from the CDC. Finally, the hospital points out that, based on current data, 99.7% of people who have been infected and under the age of 50 make a full recovery. The healthcare worker objects that the current statistics are not reliable, that the virus has an incubation period of fourteen days, and that tests for any disease always have false negatives, so COVID-19 could very well be in the hospital.
Is this dangerous work? Was the healthcare worker’s refusal objectively reasonable? Unfortunately, these are very difficult questions to resolve. Whether the work is considered dangerous will depend on how likely it is that the employee will be exposed to COVID-19 and whether the employee has any characteristics that put the employee in a higher risk category with respect to the virus. Whether the healthcare worker’s refusal was objectively reasonable depends on the likelihood of exposure and the fact that the hospital was unable to procure the necessary PPE, but must be balanced against the fact that patients need continuous care. Given the lack of certainty in how OSHA would view these questions, employers should take caution before terminating or otherwise disciplining an employee for a refusal to perform work that could expose the employee to COVID-19.
The National Labor Relations Act (the NLRA) prohibits employers from retaliating against employees for engaging in protected, concerted activities. Generally, when two or more employees band together to refuse to work under unsafe conditions, they are protected against discharge. However, employees who express individual concerns about the coronavirus generally are not protected by the NLRA. Managers and supervisors are also not covered by the NLRA.
ADA and FMLA
Employees who are qualified individuals with disabilities under the Americans with Disabilities Act and analogous state, county and city laws (collectively the ADA) who refuse to work due to the threats that the coronavirus present to their medical conditions are entitled to reasonable accommodations, which could include an unpaid leave of absence.
Likewise, under the FMLA, covered employees are entitled to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month period because the employee is incapacitated due to a serious health condition or because the employee must care for a covered family member who is incapacitated due to a serious health condition.
The proposed Families First Coronavirus Response Act (H.R. 6201), previously reported here would implement a public health emergency leave program under the FMLA. Specifically, the bill applies to workers who have been on the job at least 30 days at government agencies and private organizations that employ 51-499 people. It allows leave if the employee poses a risk of transmitting coronavirus to other employees, to care for children under 18 whose school or daycare closes due to coronavirus, or to care for a family member who has symptoms or has been exposed to coronavirus.
The Families First Act would also allow the first 14 days of leave to be unpaid but would allow the employee to concurrently use any paid vacation, personal, medical or sick leave that they have previously accrued. After the fourteenth day of leave, covered employers would be required to provide paid leave for each day an employee takes leave at a rate equal to 66.67% of their normal pay. Though the bill is working its way through the process to become law, the expectation is that the remedies ultimately provided will largely resemble those outlined in HR 6201.
Paid Family Leave Laws
Many states and cities have passed paid family leave laws that allow employees to take paid leave for their own serious health conditions or to care for family members who have a serious health condition. H.R. 6201 would require governments and employers with 499 employees or fewer to provide paid sick time if any employee needs to:
- Self-isolate due to diagnosis with the coronavirus;
- Obtain a medical examination or medical services due to the coronavirus;
- Comply with a recommendation from a health official or public official to enter quarantine; or
- Care for family who has self-isolated, been diagnosed or is experiencing symptoms of coronavirus, or to care for a child whose school/child care has closed due to coronavirus.
Full-time employees would be entitled to 80 hours of paid leave, while part-time employees would be eligible for an amount of leave equal to their normal scheduled hours during a two-week period. Employees would be paid at their normal wage for leave due to their own health condition but would be paid at a rate equal to 66.67% for leave to provide care to a family member.
The bill prohibits employers from requiring a worker to find a replacement to cover the worker’s scheduled work hours, and makes it unlawful to discharge or discriminate against employees for requesting paid sick leave or filing a complaint against their employer regarding the use of paid sick leave. Any remaining paid leave at the end of the year would be carried over to the following year. Finally, the aforementioned provisions would apply on top of employers’ existing paid leave policies. Again, though not law yet, the expectation is that the remedies ultimately provided will largely resemble those outlined in HR 6201.
Employers must make sure that they make employment decisions that are not discriminatory based on any characteristic that is protected under any applicable equal employment opportunity law. Thus, in making termination or any other disciplinary decisions, employers should treat employees consistently without regard to employees’ protected characteristics.
Common Law Public Policy Claims
Employers must be prepared to defend themselves against claims for wrongful discharge in violation of public policy if an employee is terminated for refusing to work due to coronavirus concerns. Normally, such claims are only viable if the discharge contravenes a public policy expressed in an applicable state law or constitution, but arguments may be advanced particularly given an employee’s right to refuse dangerous work under OSHA.
We are in uncharted waters, but as the crisis unfolds, things will become clearer. We are here for you to help you navigate the evolving situation.
We will continue to monitor developments in this area. If you have any questions, please contact any of the authors, any member of the Labor & Employment Group, or the Arent Fox professional who regularly handles your matters.