Employees may be faced with new risks in the workplace as a result of the COVID-19 epidemic. Employees who refuse to perform work due to concerns over COVID-19 exposure may risk discipline for “insubordination.” However, such discipline can potentially violate the law and/or a collective bargaining agreement (“CBA”). If you have concerns about the risks you face in the workplace, you should consult with your steward or a Local officer for advice. Below are some considerations for employees to keep in mind:
Employees covered by a CBA and arbitration clause are more likely to be protected from discipline if:
- The employee can show that they had a genuine and reasonably based belief that performing those work duties would put them at immediate risk of contracting or being exposed to COVID-19;
- Where practical, concerns were timely presented to management;
- Where practical, the employee conditions their work on reasonable remedial measures that would allow the employee to perform work with minimal risk; and
- An affected employee keeps a written record of the circumstances surrounding any refusal to perform work.
- In addition, the Center for Disease Control and Prevention has provided guidance to employers in light of the COVID-19 epidemic: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Employees should review this resource and encourage employers to adhere to its recommendations, as this resource may provide additional “just cause” considerations.
- Blanket refusals to work, i.e. complete refusals irrespective of remedial measures offered by an employer, are far less likely to be protected.
- Employees at greater risk because of their own health condition may be entitled to a reasonable accommodation up to and potentially including leave from work.
- Generally, discipline can be avoided or invalidated if an employee or group of employees (whether represented by a Union or not): (1) act in good faith in refusing to perform work due to abnormally dangerous conditions, (2) the belief was a contributing cause of the work stoppage, (3) the employee’s belief was supported by ascertainable, objective evidence, and (4) the perceived danger posed an immediate threat of harm to employee health or safety. In such circumstances, “no-strike” clauses or commitments can be suspended in order to protect such activity.
- OSHA has issued detailed guidance about the types of safety precautions employers should take in light of COVID-19. See https://www.osha.gov/Publications/OSHA3990.pdf
- Employees may also have protections afforded under state law and/or employment law applicable to a particular sector. Because such protections vary widely, employees should consult the resources available within their respective states and/or sectors.
- Members are encouraged to contact their Local leadership with questions or concerns.