COVID-19 and Federal Employment Protections for Work Refusals

COVID-19 and Federal Employment Protections for Work Refusals

Legal Sidebari

COVID-19 and Federal Employment
Protections for Work Refusals
Updated May 20, 2020
The easing of stay-at-home orders in most states has prompted both the reopening of businesses and
concern among employees who fear exposure to Coronavirus Disease 2019 (COVID-19) in the
workplace. Fifty-one percent of the respondents in a recent survey of employees forced to stop working or
work remotely because of the virus said that fear of getting sick at work would prevent their return. While
federal labor and employment laws do not generally require an employer to retain an employee who fears
returning to work, the Occupational Safety and Health Act (OSH Act) and the National Labor Relations
Act (NLRA) may provide some protections for employees who are reluctant to return to work because of
possible exposure to COVID-19.
Occupational Safety and Health Act
The OSH Act requires employers to provide a workplace free from recognized hazards that are causing or
likely to cause death or serious physical harm to their employees. The statute authorizes the Secretary of
Labor to issue occupational safety or health standards, and provides for workplace inspections and
investigations to ensure compliance with the standards. Any employee who believes there is an imminent
danger or that a safety or health standard violation threatens physical harm may request an inspection.
Section 11(c) of the OSH Act prohibits employers from discharging or discriminating against employees
because they have requested an inspection, instituted a proceeding under the statute, or will testify in any
such proceeding. In a regulation promulgated, in part, under Section 11(c), the Occupational Safety and
Health Administration (OSHA) has recognized that the OSH Act guarantees employees both explicit
rights, such as the right to participate in enforcement proceedings, and rights that exist “by necessary
implication.” Among these implied rights is the right to refuse to work because of exposure to serious
injury or death arising from a hazardous workplace condition. Section 1977.12(b)(2) of Title 29, Code of
Federal Regulations, states:
[O]ccasions might arise when an employee is confronted with a choice between not performing
assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at
the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose
himself to the dangerous condition, he would be protected against subsequent discrimination.
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Section 1977.12(b)(2) requires that the hazardous condition “be of such a nature that a reasonable person,
under the circumstances then confronting the employee, would conclude that there is a real danger of
death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate
the danger through resort to regular statutory enforcement channels.”
The U.S. Supreme Court upheld Section 1977.12(b)(2) in a case involving two manufacturing plant
employees reprimanded after refusing to perform maintenance on a mesh screen used to protect
employees from objects falling from an overhead conveyer. The employees in Whirlpool Corp. v.
Marshall considered the guard screen unsafe. They previously voiced concerns about the screen to plant
management and OSHA after their colleagues fell through the screen. One of these colleagues fell to his
death. Although the district court determined that the two employees had a genuine fear of death or
serious bodily harm and no reasonable alternative to refusing work, it denied relief, concluding that the
regulation was inconsistent with the OSH Act. The U.S. Court of Appeals for the Sixth Circuit reversed
the district court’s judgment, and the Supreme Court affirmed the appellate court’s decision.
In Whirlpool, the High Court held that Section 1977.12(b)(2) was a reasonable exercise of OSHA’s
authority. The Court maintained that the regulation furthered the OSH Act’s overriding purpose and
addressed a situation not explicitly addressed by the statute; that is, an employee being ordered to work
under conditions that he reasonably believes poses an imminent risk of death or serious bodily injury, and
a lack of time or opportunity to seek redress from the employer or OSHA. The Court explained: “[a]gainst
this background of legislative silence, the Secretary has exercised his rulemaking power . . . and has
determined that, when an employee in good faith finds himself in such a predicament, he may refuse to
expose himself to the dangerous condition, without being subjected to ‘subsequent discrimination’ by the
employer.”
Whether an employee may refuse to perform his duties and be protected by Section 1977.12(b)(2) from
an adverse employment action likely depends on the facts of a particular case. For example, a refusal to
return to work in the context of COVID-19 raises the question of whether an employee’s duties expose
him to a real danger of death or serious injury. The health of other employees in the workplace and an
employer’s enhanced safety measures could affect a court’s evaluation of a case.
National Labor Relations Act
The NLRA may also protect employees who refuse to work because of possible exposure to COVID-19 in
the workplace. The NLRA provides employees in the private sector with a right to organize and bargain
collectively through union representatives. Section 7 of the NLRA also guarantees these employees a
right “to engage in other concerted activities for the purpose of . . . other mutual aid or protection[.]” The
National Labor Relations Board (NLRB) has construed the right to engage in concerted activities to
encompass a variety of activities, including some that do not necessarily involve collective bargaining or
union organizing. For example, in NLRB v. Mike Yurosek & Son, the NLRB concluded that a group of
employees who individually refused to perform overtime work were engaged in protected concerted
activity because they initially protested a change in their work schedules as a group. Courts and the
NLRB have found similar employee efforts to improve workers’ terms and conditions of employment to
be concerted activity protected by the NLRA.
The Supreme Court has determined that Section 7 protects employees who leave their positions because
they oppose working in unsafe conditions. In NLRB v. Washington Aluminum Co., an aluminum
manufacturer terminated a group of employees after they refused to work in an aluminum plant machine
shop they described as “bitterly cold.” Unusually harsh winter weather and a broken oil furnace created
the uncomfortable conditions in the machine shop. The employees complained to their foreman and
decided to return home, believing they “could get some heat brought into the plant that way.” The NLRB
ordered the employees’ reinstatement, concluding that their conduct was concerted activity protected by

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Section 7. However, the U.S. Court of Appeals for the Fourth Circuit disagreed with the agency and
declined to enforce the order. The appellate court maintained that the employees’ walkout was not
protected concerted activity because they did not give the employer an opportunity to respond to their
complaint and avoid the work stoppage.
In Washington Aluminum Co., the Supreme Court reversed the Fourth Circuit’s decision, maintaining that
Section 7 protects employees’ concerted activity even if the activity occurs before the employees
specifically demand relief from their employer. The Court viewed Section 7 as broad enough to protect
concerted activity that occurs before, after, or at the same time the employees demand relief. The Court
also concluded that the employer’s ongoing effort to restore heat in the shop did not prevent the walkout
from being protected.
In finding the employees’ walkout protected by Section 7, the Court in Washington Aluminum Co.
observed:
[C]oncerted activities by employees for the purpose of trying to protect themselves from working
conditions as uncomfortable as the testimony and Board findings showed them to be in this case are
unquestionably activities to correct conditions which modern labor-management legislation treats
as too bad to have to be tolerated in a humane and civilized society like ours.
Whether Section 7 of the NLRA would similarly protect a walkout in response to COVID-19 in the
workplace could depend on the facts of a particular case, including how prevalent the virus is in the
workplace. The employees in Washington Aluminum Co. refused to work because of the machine room’s
lack of heat. If employees could occupy a workplace with minimal exposure to COVID-19, it may be
possible to distinguish that setting from the machine room. That said, Section 7 may still protect
employees’ concerted activity even if the employees’ belief that COVID-19 is prevalent in the workplace
turns out to be overstated. The NLRB has previously determined that employees’ concerted activity for
mutual aid or protection remains protected even if a protested working condition was actually not as
objectionable as the employees believed.
Congressional Interest
Although Congress has responded to COVID-19 by passing legislation that includes employment-related
provisions, measures like the Families First Coronavirus Response Act and the Coronavirus Aid, Relief,
and Economic Security Act (CARES Act) did not amend the NLRA or the OSH Act. However, legislation
that would direct OSHA to promulgate a new temporary standard to protect certain health care and other
employees from workplace exposure to COVID-19 has been introduced. Under H.R. 6559, the COVID-
19 Every Worker Protection Act of 2020, the temporary standard would require employers to develop and
implement a comprehensive infectious disease exposure control plan. The standard would also require
employers to adopt a policy prohibiting discrimination or retaliation against any employee who reports
violations of the control plan or good-faith concerns over a workplace infectious disease hazard to any
federal, state, or local government agency, the media, or a social media platform. S. 3677, a bill that
would similarly require OSHA to promulgate an emergency temporary standard to prevent occupational
exposure to COVID-19 has also been introduced.

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Author Information

Jon O. Shimabukuro

Legislative Attorney

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