While businesses are reopening and employees are returning to the workplace, things aren’t quite “business as usual.” Employers must manage the return to the office, keeping in mind the health and safety of their employees and customers, as well as federal, state, and local regulations. Employers may also have to consider what to do if an employee refuses to return to work during the COVID-19 pandemic.
With employees returning to the workplace, are employers required to provide them with personal protective equipment (PPE)?
The Occupational Safety and Health Administration’s (OSHA) General Duty clause requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. This clause includes protection from infectious diseases, such as COVID-19. Under this clause, employers may be required to provide employees with PPE necessary to keep them safe while at work. The level of protection and specific PPE required will likely vary among professions, with some workplaces at greater risk of contracting COVID-19, and, thus, needing additional protections. OSHA recently released guidance for the retail industry, including pharmacies, supermarkets, and big box stores. In this guidance, OSHA suggests workplaces maintain regular housekeeping practices, including routine disinfecting of surfaces and equipment, practice social distancing, and “allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.” It’s important to note that this guidance merely states that employers should “allow” employees to wear masks, and not that employees are required to wear masks or that employers are required to provide masks. OSHA also released a more thorough “Guidance on Preparing Workplaces for COVID-19” that employers should familiarize themselves with.
What if an employee refuses to return to work?
Typically, an employee doesn’t have a right to refuse to work just because of potentially unsafe work conditions. According to OSHA, an employee may refuse to go to work if: (1) he asked his employer to eliminate a workplace hazard, but the employer failed or refused to do so; (2) he has a “good faith” belief that an imminent danger exists; (3) a “reasonable” person would agree there is a “real danger” of death or serious injury; and (4) there is no time to get the hazard corrected through appropriate channels.
Employers should ensure they take steps to mitigate the risk of employees contracting COVID-19 in the workplace. According to the OSHA guidance released, all employers should:
- Develop an infectious disease preparedness and response plan—this includes assessing the level of risk associated with various roles and tasks in the workplace and the controls necessary to address those risks;
- Prepare to Implement Basic Infection Prevention Measures—this includes promoting frequent and thorough handwashing, encouraging employees to stay home if they are sick, consider working remotely when possible, and maintain routine disinfecting of surfaces and equipment;
- Develop policies and procedures for prompt identification of sick individuals, if appropriate—employers should encourage employees to self-monitor for symptoms of COVID-19 if they suspect possible exposure and develop procedures for employees to report when they are experiencing symptoms;
- Develop, implement, and communicate about workplace flexibilities and protections—this includes ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies; and
- Implement workplace controls—including minimizing contact among workers, clients and customers, when possible; stagger shifts where feasible; provide workers with education and training on COVID-19 risk factors and protective behaviors; and train workers on proper use of PPE, when applicable.
In sum, employers must take steps to establish a good faith effort to reduce hazards in the workplace, specifically, risk of contraction of COVID-19. Employers should also document the steps taken. If an employee refuses to return to work due to unsafe conditions presented by COVID-19, employers should be able to demonstrate the steps they’ve taken to mitigate or eliminate the risk of infection to help establish that it’s unreasonable for employees to refuse to return to work.
If an employee refuses to return to work because of pre-existing conditions that may put them at a higher risk of COVID-19 infection, employers may need to take additional steps. The EEOC released guidance for employers discussing obligations under the Americans with Disabilities ACT (ADA) during the COVID-19 pandemic. If an employee has a known, covered disability under the ADA, which is a factor in the employee’s refusal to work, employers should engage in an interactive process with the employee and provide any reasonable accommodations available, if any. This interactive process should include communicating to the employee all steps being taken to mitigate any risk of contagion and consideration of remote working, if appropriate. However, employers are not required to take any proactive measures for specific employees, unless and until an employee requests a reasonable accommodation. Reasonable accommodations may include providing additional PPE, creating enhanced protective measures, such as increasing the distance between a disabled employee and other co-workers, eliminating non-essential job functions, and temporarily modifying work schedules so disabled employees can work during off-peak hours.
Employers should consider an employee’s refusal to return to work and whether or not it is reasonable in light of all circumstances, including the employer’s actions to mitigate risk of COVID-19 in the workplace. If an employee doesn’t have any legitimate reason for a refusal to work, employers may be contemplating discipline. However, employers may wish to be more flexible and accommodating during this time, in light of constant changes and fluctuating guidance. This analysis can be complicated, and employers should consult with counsel when making related employment decisions.
For additional guidance, contact the employment law experts at General Counsel, PC today at 703-991-7973. Attorneys at GCPC will continue to monitor recommendations and legislation.