COVID 19 is still very much with us, but like the rest of the country, Minnesota has decided the risk has subsided enough for the economy to pretty much reopen. Many employees will happily, albeit cautiously, go back to work. Some people, however, may want to stay away, and they worry whether they’ll lose their jobs if they do, and whether they can still receive unemployment insurance benefits.
Federal Emergency Legislation Provides Limited Protection
At the federal level, recently passed emergency legislation provides some protection, but it covers only precisely defined and limited categories. For example, the Family First Coronavirus Response Act (“FFCRA,” or the “Act”) seeks to keep COVID-infected people from going to work by requiring up to two weeks’ paid leave for them. There’s also a two weeks at two thirds pay provision for employees who have to remain home to care for certain others, or who have COVID-like symptoms. In addition, FFCRA provides for ten weeks more at two thirds pay for people who have to stay at home to care for children who normally would have been at school or with another caregiver.
What About People Who Just Don’t Want to Return to Work?
What, then, protects an employee who is symptom-free and otherwise OK, but who simply is reluctant about returning to work? At the federal level there’s nothing new except for guidelines from the Department of Labor and the Centers for Disease Control. There are no new hard and fast enforceable rules, and even if there were, an employee likely would have to rely on reporting unsafe conditions to Occupational Safety and Health Administration (“OSHA”) regulators under the existing regulatory framework.
Bottom line: in most cases the reluctant employee who stays at home risks termination and may also risk loss of unemployment benefits. Are there any ways to avoid this Hobson’s choice? Yes, but they likely won’t apply absent a really egregious COVID-related safety problem. Under the Occupational Safety and Health Act (“OSHAct”), there is a general duty to maintain a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If someone believes there’s an imminent risk from COVID, perhaps because people work in close quarters and the employer is not requiring masks or other protective measures, then termination for refusal to work might not be allowed. The refusing employee should report the unsafe conditions to OSHA, and if terminated can then pursue a retaliation claim with the agency. Note that such a claim would have to be initiated within thirty days of the termination.
A Few Other Pre-COVID Federal Laws to Consider
Aside from the OSHAct, there are other pre-COVID federal laws that might offer at least some protection for reluctant workers. These laws include the National Labor Relations Act, which protects “concerted activity” by two or more employees who walk off a job because of unsafe conditions. Again, however, the reason for walking off has to be specific and truly dangerous. A general fear of the post-COVID workplace won’t suffice. For employees who suffer from conditions that might make them more susceptible to COVID, the Americans with Disabilities Act may be applicable. Things like heart disease or diabetes, which make a person more likely to die with COVID, are generally considered disabilities that require reasonable accommodation, such as working at home or in safer parts of the workplace. There’s also the Labor Management Relations Act, under which an employee who walks off the job “because of abnormally dangerous conditions” can’t be terminated for leaving.
Does Minnesota Law Provide Additional Protection?
Again, the federal bottom line is that mere reluctance can’t be grounds for staying away from work. There has to be a really serious issue. In Minnesota the situation may be a little less harsh, however. On May 13, 2020 Governor Walz issued Emergency Executive Order 20-54, which clarifies how existing protections apply to COVID issues. It specifically addresses nine points, one of which states that “workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm. This includes a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with an infectious agent such as COVID-19.” Whether adding the “reasonable belief” language to the “imminent danger” test will make things better for reluctant workers remains to be seen. That’s an open question. It likely will be resolved only when employees press state claims that would probably fail under existing federal law.