COVID-19 Guidance

The COVID-19 crisis has seriously disturbed our day-to-day routines and had a significant impact on our jobs and economy. Many businesses had to make significant changes in order to transition to working from home and complying with quarantine measures. However, at some point, quarantine measures will be lifted, and businesses will be permitted to re-open. The question is, what can employers do if their employees refuse to return to work. In this article, we discuss employers’ options in the event their employees refuse to return to work when businesses can re-open.

According to OSHA When Can an Employee Refuse to Return to Work?

The Occupational Safety and Health Administration (OSHA) has issued some guidelines regarding the rights of employers and employees during the COVID-19 crisis. Generally speaking, there is no absolute right that entitles employees to walk off the job merely because of a potentially unsafe condition. Employees must raise their concerns with their employer and if there is a dispute about the extent of the danger, an employee may even seek insight from a public agency.

If an employer fails to implement appropriate safety measures such that an employee has no reasonable alternative, and refuses in good faith to expose himself or herself to the dangerous condition, the employee is protected against discrimination by the employer. Under this framework, in certain circumstances, an employee who refuses to return to work due to the risk of exposure to the COVID-19 virus which has not been properly mitigated by the employer cannot be discriminated against. However, employers can avoid these circumstances by providing by taking recommended safety precautions, proving clear information to their employees and documenting all precautions taken to protect employees to exposure of the COVID-19 virus.

Employers Cannot Discriminate Against an Employee who refuses to return to work

As noted above, there are four conditions that must be in place for an employee to refuse to return to work following the health crisis. Those conditions are:

  1. The employee asked the employer to eliminate a hazard in the workplace but the employer has failed or refused to do so;
  2. The employee 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 (for example, by having the hazard investigated by a public agency).

The key to determining whether or not an employee has rightfully refused to return to work depends in large part if their fear of the danger is considered reasonable. The more an employer does to show that they have taken all steps to avoid unnecessary exposure and limit the risk of infection among the employees the less likely it is that the employee’s refusal to return will be deemed proper. However, if an employee has concrete examples showing that the employer is unnecessarily risking exposure, then the above conditions are met, and an employer is not permitted to discriminate against the employee.

How can employers demonstrate they have taken appropriate steps to mitigate the risk of COVID-19 infection in the workplace?

The more an employer does to protect its employees from risks, and importantly, the more an employer documents those efforts, the more leverage an employer has over an employee who is refusing to return to work. Employers should take the following steps to mitigate the risk of COVID-19 exposure.

  • Train employees to practice good hygiene and maintain clean and sanitized workspaces. Be sure to enforce rules when employees fail to comply with them.
  • Analyze and implement ways to reduce exposure and limit contact between individuals. This includes staggering shifts, installing protective partitions, limiting customer access, encouraging social distancing and avoiding sharing equipment or supplies.
  • Provide employees with necessary personal protective equipment, including masks, gloves and sanitizer.
  • Investigate and promptly address any complaints issued by employees. Document all efforts to remedy employee concerns.

What can PA employers do if employees refuse work and employment was lost?

In Pennsylvania, if an employee refuses to return to work and the refusal results in the termination of that individual’s employment, there are steps that an employer can take to protect itself from retaliation from the employee. The employer should provide the employee with a written request to return to work confirming the position, rate of pay and that it is a substantially similar position. In addition, the Pennsylvania Office of Unemployment Compensation Benefits (PAUC) has several resources for employers who are working with employees who are refusing to return to work following the pandemic. Employers should fill out this form and submit it to the PAUC within seven days of an employee’s refusal to return to work, as well as keep a thorough records of all safety precautions put in place, and complaints or concerns raised by the employee and a list of all administrative and policy measures implemented to prevent the risk of exposure to the virus in the workplace.

What steps does OSHA advise employers to take to avoid COVID-19 refusal to return to work issues?

Before businesses reopen, there are several steps that employers can take in order to avoid situations in which employees will likely refuse to return to work. OSHA recommends that employers:

  • Create an Infectious Disease Preparedness Plan. Be sure to closely monitor all Federal, State and Local guidelines and evaluate the various risks of exposure in your workplace.
  • Implement Protection Measures. Establish clear sanitation procedures and adjust day-to-day activities to encourage social distancing and limit contact between employees and customers. Consider staggered work schedules for heavily populated office environments.
  • Implement a System for Identifying Infection and Avoiding Contamination. Develop an employee self-conducted health screening questionnaire. Temperature checks before entering the workplace may be required. Review warning signs of infections and educate employees of those signs, as well as encourage open communication in the event that contamination has occurred.
  • Develop Workplace Controls and Safety Measures. Ensure that all employees have the appropriate personal protection equipment and install protection equipment, such as face masks, gloves, plastic barriers and sneeze guards for open work spaces or protective clothing.
  • Stay Apprised of OSHA Recommendations and Safety Measures. Information and guidelines surrounding the COVID-19 outbreak are constantly changing, so it’s important to be aware of the most up to date information and implement it in the workplace accordingly. Consider appointing a Pandemic Safety Officer tasked with keeping up to date on CDC and State Health Department guidelines, facilitating communicating with management and employees as well as implementing safety protocols.

Are employees with higher risk of COVID-19 allowed to refuse to return to work?

While employees generally cannot refuse to return to work unless they have addressed their concerns with their employer, if the employer has refused to address those concerns and their concerns are considered reasonable, there is an added element when an individual who refuses to return to work is at a higher health risk or has a recognized health issue which may trigger applicability of the Americans with Disabilities Act (“ADA”) . The ADA prevents employers from discriminating against employees who have a covered disability. If an employee has a known covered disability that is negatively impacted by the threat of the COVID-19 crisis, the employer will need to discuss with the employee alternative options that would allow the employee to continue their employment is a safe manner. If the employer can accommodate the individual’s disability without causing undue hardship to either party, such as by allowing the individual to work remotely, then the employer will be obligated to meet that accommodation.

Why is it best for employers to consult attorneys when faced with Employees who refuse to return to work in Pennsylvania?

The COVID-19 virus has created an incredibly complex situation for business, both large and small across the country. Many Americans are concerned about staying safe and healthy, while also ensuring their jobs and livelihoods are protected. Employers are equally concerned about protecting their employees while avoiding a collapsing business. For this reason, employers should consult with an employment attorney to answer their questions about how to handle employees who are refusing to return to work as well as developing proper return to work and modified work plans. They will be able to provide guidance and recommendations so that you can be sure that you are protecting your employees while simultaneously protecting your company.

What does limited operation mean?

Limited operation refers to opening up a portion of a business’s available services in order to continue with some business operations, but while preventing unnecessary exposure or risk of infection during the COVID-19 outbreak. For example, Allegheny County is currently conducting business while in the “Yellow” phase as directed by Governor Wolf. The yellow phase permits many businesses previously considered non-essential to open on a limited basis with reduced work forces, staggered schedules and limited public exposure. Other businesses remain in the red phase. For example a restaurant might only do take-out orders, rather than open their entire restaurant. Stores may be processing online orders. Other companies may be evaluating which operations are the most essential to keeping the business running and only performing those duties. Limited operation can help limit exposure to the virus and keep employees safe. To effectively operate and protect your business an employer should have a written return to work policy that meets the current guidelines, allows the business to effectively operate and protects its employees

What safety measures will be followed as Pennsylvania courts reopen?

Pennsylvania courts re-opened on May 4. In reopening, however, courts are required to implement several safety measures to prevent potential COVID-19 exposure. First, in-person access and proceedings are “strictly limited.” This means that courts are encouraged to decide matters without in-person appearance or conduct proceedings through videoconferencing, telephone or email. Additionally, in circumstances in which in-person hearings are necessary, such hearings are to be held in courtrooms that are specially designated to limit person-to-person contact and social distancing measures are to be adhered to. Furthermore, if an in-person hearing is required, such hearings are to be attended by counsel only whenever practicable. Finally, courts are to provide for court filings to be made remotely.

Will jury trials change now that PA courts are reopening?

Currently, both civil and criminal jury trials are still suspended, and will be scheduled at some point in the future by the courts. Local courts are tasked with assessing options for resuming jury trials in a manner that is consistent with health and safety measures,

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.