OSHA Guidance on an Employee’s Right to Refuse to Work

March 25, 2020Alerts

In light of the ongoing COVID-19 pandemic, the decade-old guidance from the Occupational Safety and Health Administration (OSHA) that addressed employee protections during the 2009 H1N1 influenza (Swine Flu) is once again critically relevant. It clarifies when an employee is protected from discipline for refusing to come to work, or perform work, due to a concern about health and safety in the workplace.

While OSHA has issued recent guidance discussing the expectations of employers in providing a safe workplace during the COVID-19 outbreak, it’s critical to comply with the anti-discrimination stipulations under the older OSH Act.

The OSH Act states that an employer cannot discriminate against employees who both:

  • Refuse, in good faith, to expose themselves to a dangerous job condition; and
  • Believe they have no reasonable alternative but to avoid the workplace.

For the anti-discrimination provision to apply:

  • The condition causing the employee's fear of death or injury must be one that a reasonable person in similar circumstances would conclude poses a real danger of death or serious injury.
  • There must be insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels.

This means that an employer cannot discriminate against (discipline) an employee who: (a) refuses, in good faith, to expose himself or herself to a dangerous condition in the workplace; and (b) believes they have no reasonable alternative but to avoid the workplace (or assignment).

In sum:

  • The condition causing the employee’s fear must be one that a reasonable person in similar circumstances would conclude possess a real danger of death or serious injury.
  • Where possible the employee has asked his employer for, but not obtained, a correction of the dangerous condition.

Notably, an individual cannot file a claim against an employer for failure to comply with the General Duty clause unless he or she is disciplined or discharged and suffers a loss – stays home, loses pay, and can show that their concern(s) was valid (by meeting the test above).

Employees can also report an alleged violation to OSHA, who will institute an investigation that may be painful. Employees who can prove they were infected with COVID-19 in the workplace generally may file a workers compensation claim, which bars a civil action against the employer.

For more questions or more information about this alert, please contact Randall C. Schauer at [email protected] or 610.458.4967, or any member of the firm’s national Labor & Employment Department.