At Famighetti & Weinick PLLC, our Long Island employment lawyers are fielding calls from employees worried about a number of different coronavirus related employment issues. One serious issue we are seeing is health care workers’ concerns about working when the best protective equipment may not be available or may not be being provided by the employer. Specifically, what we’re seeing is questions about whether health care workers, such as nurses, doctors, and nursing home aides, must report to work when their employer is not providing equipment like n-95 respirator masks. Today’s Long Island employment law blog discusses workplace safety issues related to working in the era of Covid-19.
Like most employment questions relating to coronavirus, there are no easy answers. We’ll first look at some legal considerations, then we’ll address some practical considerations.
OSHA is the federal agency which regulates workplace health and safety. OSHA regulation Section 13(a) allows employees to refuse to work when the employee believes that he or she is in “imminent danger.” To be considered an imminent danger, the workplace condition must “reasonably be expected to cause death or serious harm immediately or before the imminence of such danger can be eliminated through” OSHA’ enforcement procedures. In further defining imminent danger, the condition must be reasonably expected to shorten life or substantially reduce physical or mental efficiency.
OSHA requires that four points be met before an employee can refuse to work:
1. the employee must ask the employer to eliminate the danger and the employer must have failed to do so.
2. you must genuinely believe an imminent danger exists;
3. a reasonable person would agree with you that there is a real danger of death or serious injury,
4. there isn’t enough time to correct the danger through normal enforcement channels such as an OSHA inspection
With Covid-19, the question will be whether employers have failed to eliminate the danger. The CDC has issued guidance that in the absence of N-95’s because of supply chain issues, surgical masks are acceptable. So, if for example a hospital is simply not providing n95s because it thinks it’s too expensive, the hospital may be failing to act to eliminate the danger. But, if the hospital cannot provide n95s because of a real shortage, the CDC guidance suggests the hospital is, legally speaking, eliminating the danger by providing alternative safety measures which are available.
In sum, if your health care facility is taking whatever precautions are available to it to mitigate your risk of exposure, it’s questionable whether you’d be able establish that the employer has failed to eliminate the danger.
In addition to OSHA rules, health care workers working without certain protective equipment may implicate pregnancy or disability discrimination laws. We’ve been hearing from many nurses who are pregnant or who have recently given birth and are breast feeding, who are extremely anxious about exposure to covid-19. Others have underlying medical conditions or family with medical conditions.
Under discrimination laws, employers are required to provide reasonable accommodations. Reasonableness varies by circumstance. If hospitals are providing as much protective equipment as is available, they are arguably providing reasonable accommodations. Leaves of absence or alternate work assignments, which may be reasonable when there is not a crisis, may not be reasonable under a national emergency involving a health care crisis.
The practical consideration is that each worker has to think about what the right thing to do is for his or her own situation. Some workers understandably can’t take the risk and may want to try to invoke the OSHA refuse to work rule. The risk is termination and a later determination by a judge that one or more of the four elements of Rule 13a were not met. In other words, the termination may be lawful. In sum, take all the information available to you and decide what’s right for your particular situation.
This may not be the most comforting analysis, but there is unfortunately, little comforting news these days and we’re in some uncharted territory. Because every individual’s situation is different, we urge you to speak to us directly or to another lawyer, before making a decision to refuse to work because of covid-19. Our telephone number is 631-352-0050. You may also want to watch our video about healthcare workers’ safety during the coronavirus outbreak.
Regardless of your decision, we thank you for your service in this time of crisis.