May employees refuse to come to work for fear of exposure to COVID-19 in the workplace?
Employers should be mindful that OSHA protects an employee’s right to refuse to work if the employee reasonably believes that he or she is exposed to an imminent danger, which is defined as a reasonable expectation of death or serious physical harm immediately or before the imminence of such danger can be eliminated through OSHA’s enforcement procedures. OSHA has prepared guidance on how to prevent or limit workplace exposure to COVID-19. Employers should promptly address employee concerns regarding exposure to the COVID-19 and consult with legal counsel before taking any disciplinary action against employees who refuse to work.
While the general risk of contracting COVID-19 likely may not constitute imminent danger, there is a greater chance that the imminent danger test has been met in cases where one or more employees at a work site have contracted the virus. Additionally, if two or more employees refuse to work due to fears about exposure to COVID-19 or one employee advocates for a group of employees who refused to work due to exposure to COVID-19, these actions may be protected under the National Labor Relations Act as protected concerted activity, even if the workforce is not unionized.
The ADA may also come into play if an employee is refusing to come in to work due to an underlying medical condition that may put the employee at greater risk of serious illness from COVID-19. In such a situation, employers should engage in the interactive process and take steps to reasonably accommodate the employee.
Last updated June 22
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