Seyfarth Synopsis: Employees who complain about safety measures to protect employees from COVID-19 may be protected from retaliation by federal and state laws.  Employees who refuse to perform job functions may also be protected.

News media reports during the COVID-19 pandemic highlight widespread concern and anxiety from employees about safety and health precautions in the “essential” workplace.  Many employees have complained about the quality of availability of personal protective equipment (PPE) and hand sanitizer, as both have been in short supply during the nationwide epidemic.  Some employees have even refused to perform specific work tasks or refused to report to work entirely.  These concerns can result in allegations of retaliation and complaints to federal and state OSHA agencies.

Background on Section 11(c) of the Occupational Safety and Health Act (“the Act”)

Under Section 11(c) of the Occupational Safety and Health Act (and comparable state regulations), employees are protected from retaliation for raising safety concerns.  To state a prima facie case for safety-related retaliation under Section 11(c), an employee must allege (1) a protected activity, such as making internal safety complaints, complaining to OSHA, or refusing to perform unsafe tasks, (2) an adverse employment action, such as discipline or termination, and (3) causal connection between the two. The Act gives employees the right to file a whistleblower claim with OSHA within 30 days of the adverse employment action.  OSHA will then conduct an investigation of the claim; there is no private cause of action under the Act.

Is a refusal to work on the account of COVID-19 “protected activity” under Section 11(c)? 

Under the federal regulations, employees generally have no legal right to work off the job or refuse to perform work entirely.  An employee can only refuse to perform specific tasks for which the employee has an objectively reasonable safety concern that the employer has not yet addressed.  This is according to OSHA’s most recent Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection Provision.  But the reasonableness of refusing to work out of generalized fear of COVID-19 has not yet been litigated and the specific exposures to COVID-19 from the asks at issued will be evaluated on a case-by-case basis.  Given the virulence of the disease and ease of transmission, there may be a shift in thinking about whether refusing to go into an environment where interactions with customers or other employees are frequent would give rise to an objectively reasonable concern about serious injury or death.

Before finalizing disciplinary action against employees who have raised COVID-19 safety concerns and who may be refusing to work, employers should first consultant with counsel and try to address employees concerns.  Employers should take proactive steps to communicate how the employer is addressing COVID-19 hazards and protecting employee safety consistent with CDC and OSHA guidelines.