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COVID-19 and Federal Employment

Protections for Work Refusals

Updated May 20, 2020
The easing of stay-at-home orders in most states has prompted both the reopening of businesses and
concern among employees who fear exposure to Coronavirus Disease 2019 (COVID-19) in the
workplace. Fifty-one percent of the respondents in a recent survey of employees forced to stop working or
work remotely because of the virus said that fear of getting sick at work would prevent their return. While
federal labor and employment laws do not generally require an employer to retain an employee who fears
returning to work, the Occupational Safety and Health Act (OSH Act) and the National Labor Relations
Act (NLRA) may provide some protections for employees who are reluctant to return to work because of
possible exposure to COVID-19.

Occupational Safety and Health Act
The OSH Act requires employers to provide a workplace free from recognized hazards that are causing or
likely to cause death or serious physical harm to their employees. The statute authorizes the Secretary of
Labor to issue occupational safety or health standards, and provides for workplace inspections and
investigations to ensure compliance with the standards. Any employee who believes there is an imminent
danger or that a safety or health standard violation threatens physical harm may request an inspection.
Section I I (c) of the OSH Act prohibits employers from discharging or discriminating against employees
because they have requested an inspection, instituted a proceeding under the statute, or will testify in any
such proceeding. In a regulation promulgated, in part, under Section 11 (c), the Occupational Safety and
Health Administration (OSHA) has recognized that the OSH Act guarantees employees both explicit
rights, such as the right to participate in enforcement proceedings, and rights that exist by necessary
implication. Among these implied rights is the right to refuse to work because of exposure to serious
injury or death arising from a hazardous workplace condition. Section 1977.12(b)(2) of Title 29, Code of
Federal Regulations, states:
       [O]ccasions might arise when an employee is confronted with a choice between not performing
       assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at
       the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose
       himself to the dangerous condition, he would be protected against subsequent discrimination.

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