Can you refuse work during the pandemic?

Over the last few weeks, the number of #Coronavirus cases and hospitalizations have been on a steady rise in 41 states across the country.— Despite the increases, states are moving forward with opening their economies and getting people back to work.

Now, workers are faced with a tough decision: prepare to go back to work and potentially expose yourself to COVID-19 or refuse to work and lose income. We break down your rights should you refuse to return to work over fears of COVID-19 and your legal protections, including unemployment eligibility, if you choose to do so.

Am I protected by my employer should I choose not to return to work because of fear of catching Coronavirus?

In general, employees don't have a right to refuse to work because they feel unsafe in the workplace. However, an employee can refuse to work if they feel like they are in “imminent danger.” This is especially hard to interpret and intentionally vague because of the ever-evolving understanding and risks of COVID-19.

A generalized fear of catching the #Coronavirus would likely not constitute a fear of “imminent danger.” Although, if you feel that your workplace isn't doing enough to minimize the risk of COVID-19 exposure (not mandating masks, lack of social distancing in place, or not accurately reporting known exposure), there are two legal options:

Option 1: File a complaint with your state’s Occupational Safety and Health Administration (OSHA.) OSHA could investigate and require changes. You would have protection from getting fired.

Option 2: You and a group of employees could walk off the job. If you're fired, you'd likely be protected under the National Labor Relations Act.

If there has been evidence of covid-19 spread in the workplace, for example, someone has it, an employer could not force the other employees to come to work in that environment, as there is a direct threat of contamination. But with no evidence of exposure, or the exposure does not impact all employees, then, the employer can insist that people come to work.

Individuals may continue to receive state unemployment benefits if they have "good cause" not to return to an employer, which can include pandemic-related situations, although it is unlikely. This is determined on a case-by-case basis. Your employer can't stop you from applying, but they can challenge your application.

The first step is to call your state’s unemployment hotline or check your state’s unemployment website for guidance. You may be told to reapply to receive the benefits you’re entitled to. Very often, contacting your state representative or state senator is helpful in moving your case along. Also, contact your local legal aid office for assistance if you have been denied benefits.

I don’t feel safe at work. Can I speak up without jeopardizing my job?

As stated above, your employer should be enforcing regulations to help minimize the spread of the virus. This includes enforcing proper social distancing of six feet between all workers, being honest about reporting known exposures, keeping track of their employee’s health by taking temperatures before and after shifts, and continually asking for any sign of related symptoms.

If you feel that your employer is violating your safety, it is best to first bring it to the attention of your direct manager. From a legal standpoint, the federal OSHA General Duty Clause requires that an employer provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm — this includes injury from infectious diseases such as COVID-19. (OSHA-approved state plans will have similar or more protective standards.)

Although employers are obligated to take such required steps mandated by the OSHA or an OSHA-approved state plan, they are not required to go beyond that. In other words, an employee who doesn’t “feel” safe has little basis to demand further protection if, in fact, the employer is fully compliant with its state and federal safety obligations. In the event that the employer has policies in place, but the policies are not followed, the employee will have a basis for a complaint.

If your manager is not receptive or disregards your concern and you still feel at-risk, make sure to adequately document every interaction in the event you do wish to file a formal complaint without risking your job.

Can my job require me to wear a mask?

While you are on the clock, your employer can set rules and expectations at its discretion so long as the employer is within the bounds of the law. However, be advised that even off-duty conduct can sometimes have work-related consequences. Employers are obligated to provide their workers with personal protective equipment (PPE) needed to keep them safe while performing their jobs. It should be noted that an employee cannot demand specific PPE or PPE that is not deemed appropriate for the exposure.

Customers can also be required to wear masks and other PPE. These requirements are based on the current CDC (Center for Disease Control & Prevention) and the OSHA (Occupational Safety & Health Administration) recommendations.

You can make your personal choices based on your beliefs after you leave work.

Can I refuse to work overtime?

Many essential, warehouse, and delivery jobs are at an increased demand with the call for longer hours or additional shifts necessary to meet the needs of the economy. The short answer is no, you cannot refuse overtime. There are, however, a couple of exceptions. First, if a lack of sleep or fatigue creates demonstrable safety concerns, the employee may refuse to work if they have a good faith belief that the conditions create an imminent risk of serious injury or death. Second, if the employee is part of a workplace covered by a collective bargaining agreement, the employee may be excused from working “mandatory” overtime.

What if not working is not an option for me but I am sick?

If you or a co-worker comes to work obviously ill and showing symptoms of coronavirus, your employer should send you or the employee home because of the risk to others. If you then miss work because of having the virus or must be quarantined, many states have made unemployment insurance benefits available for days missed or reduced hours that might not normally be available. Make sure to check with your individual state on the precise length of unemployment insurance coverage.

Because the novel #Coronavirus is so new and ever-changing, the safeguards and recommendations are progressing alongside it and it is important to be up to date on any federal or state-level mandates that affect your workplace. The best answer is that refusing to work because of a fear of contracting #Coronavirus depends largely on an individual or case-by-case circumstances.

Ultimately, it comes down to what you are most comfortable with in order to ensure you remain healthy and safe for you and your family. It is best to be upfront and honest with your employer and manager about your concerns and fears should you have them. We understand that with so much information about the #Coronavirus, it can be overwhelming and we are here to help you navigate through it.

How do you feel about going back to work? What are your concerns?