In normal circumstances, your employer can charge you as absent without leave (AWOL) and discipline or fire you for not coming to work. But what about during the COVID-19 pandemic? These are uncharted waters, and the answer is far from clear. Federal, state, and local governments are rushing to push out new laws and guidance for dealing with COVID-19. But here is some basic info about protections under the Occupational Safety and Health Act (OSH Act), the Americans with Disabilities Act (ADA), and the Rehabilitation Act.
Occupational Safety and Health Act (OSH Act)
Under the OSH Act, employees may only refuse to work if they believe they are in “imminent danger.” If you work for a covered employer, you may be able to refuse to work based on “imminent danger” if all of the following are true:
- Your employer refused your request to eliminate the danger;
- You refused to work in “good faith” (e., because you truly believed there was an “imminent danger”);
- A reasonable person would agree that there was a real dangerous of death or serious injury; AND
- There isn’t enough time to address the danger through regular enforcement procedures.
Additionally, covered employers can’t retaliate against employees who exercise their rights under the Act.
A general fear of getting COVID-19 is not enough to justify refusing to work. However, depending on the specific circumstances, you may be able to prove imminent danger if your employer makes you come to work but won’t take precautions to minimize infection. For example, your employer’s failure to properly clean work areas, require employees to wash hands, or to provide necessary protective equipment may (or may not) be enough to establish an imminent danger during the pandemic, especially if a coworker or customer has tested positive for COVID-19.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act
These are federal laws that prohibit disability discrimination. This means that, if you work for a covered employer, your employer can’t take an adverse employment action against you, or subject you to a hostile work environment, because you have a disability. Additionally, these laws require employers to provide reasonable accommodations to employees with disabilities. However, employees aren’t protected by the ADA or the Rehab Act if they present a “direct threat,” which means a “significant risk of substantial harm to health or safety of self or others” even with a reasonable accommodation. In other words, an employer can lawfully send you home from work or decline to hire you if you are positive for COVID-19.
However, if you don’t have COVID-19 or pose any other direct threat, you are still entitled to protection under the ADA or Rehab Act if you work for a covered employer. During the H1N1 pandemic, the EEOC issued guidance stating that covered employers may be required to provide telework as a reasonable accommodation for employees with disabilities that put them at risk of H1N1 complications. Therefore, it’s likely that the same would apply for employees with disabilities that make them particularly vulnerable to COVID-19. In other words, if you have a respiratory or immunodeficiency-related disability, it doesn’t hurt to request to take telework or leave as a reasonable accommodation during the pandemic.
Do you have health concerns about your workplace?
If you have a disability or if your workplace is putting your health in danger, contact, we can help. Alan Lescht and Associates, PC, represents federal government employees around the world, as well as private-sector and state and local government employees in DC, Maryland, and northern Virginia. Our employment attorneys will evaluate your case, determine whether you can take legal action against your employer, and advise you about exercising your rights. Contact us today to schedule a consultation.
