April 3, 2020

By: Robbins, Salomon & Patt, Ltd.

Approximately 80% of Americans including Illinois citizens, are now subject to state and local government orders encouraging or requiring them to stay at home (Stay-At-Home Order.) These rules do not apply to people working as healthcare providers, for an “essential business” or in “critical infrastructure industry.” Some employees working in exempt businesses or in states where no there is Stay-At-Home Order have expressed concerns about the fear of contracting COVID-19 at work. The federal Occupational Safety and Health Act (OSHA or the Act) prohibits an employer from retaliating against an employee for exercising rights under the Act.

The question is, if an employer in an exempt businesses or in a state where there is no Stay-At-Home Order, fires or takes disciplinary action against an employee who walks off the job or refuses to report to work due to COVID-19 fears, does the employer violate the employee’s OSHA rights under the Act? Could the employer face an OSHA Administrative charge or federal lawsuit by the Secretary of Labor (Secretary) for retaliating against the employee? Although this discussion is limited to refusal to work issues under OSHA, the answer is uniquely fact specific.

After analyzing traditional OSHA law in this memo and how it applies to this unique public health crisis, we have some practical suggestions.

1. OSHA’S Anti-Retaliation Rules

OSHA was enacted in 1970, requiring, as stated in Section 5(a)(1), that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654 (the “General Duty” Clause). OSHA also states that an employer cannot “discharge or in any manner discriminate against any employee” because the employee complains about a safety issue to management or OSHA or “because of the exercise by [an] employee on behalf of himself or others of any right afforded by this Act.” 29 U.S.C. § 660(c) (“Section 11 of OSHA” or “the Act”); see also 29 CFR Part 1977. If an employer takes discriminatory action in retaliation, OSHA can bring an Administrative action against the employer and/or the Secretary can sue the employer, under Section 11 of OSHA, in federal court, seeking the employee’s reinstatement, back pay, and “all appropriate relief.” 29 U.S.C. § 660(c)(2). However, the OSH Act does not directly address whether employers can be charged or sued if employees claim to exercise their rights because they allege there is an imminent risk of death or serious bodily injury and they claim there is insufficient time or opportunity to seek redress from OSHA or the employer.

Interpreting Section 11 in 1973, OSHA issued an anti-retaliation regulation at 29 CFR § 1977 (the “OSHA anti-retaliation regulation”), stating under what circumstances an employee could refuse to perform work under the Act. Section 177.12(b)(1). That section states:

[A]s a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.

29 CFR § 1977.12(b)(1) [emphasis added.]

Despite this seemingly clear statement that employees do not have the right to walk off the job, the next paragraph of the regulation states that exigent circumstances may exist to trigger employee protections for refusing to work. Section 1977.12(b)(2) 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,” and, in such circumstances, an employer cannot take action against the employee. 29 CFR § 1977.12(b)(2). If: (1) “the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition;” (2) “a reasonable person… would conclude that there is a real danger of death or serious injury;” (3) due to the urgency of the situation, there is insufficient time “to eliminate the danger through resort to regular statutory enforcement channels;” and (4) the employee “sought from his employer, and was unable to obtain, a correction of the dangerous condition,” an employer taking action against the employee refusing to work could be subject to a Section 11 lawsuit brought by the secretary. Id.; see also, 29 U.S.C. § 660(c). While this regulation has never been overturned by the courts, it should be noted that regulations are not statutes. They are statements of what an agency given rule-making authority over a statute, believes the legislature meant when the legislature failed to dot the “i’s” and cross the “t’s.” They are agency pronouncements after a comment and posting period.

A policy “guidance” has even less weight legally as it is akin to a letter of opinion. OSHA has issued a “guidance” on “Workers’ Right to Refuse Dangerous Work,” cautioning that “OSHA cannot enforce union contracts that give employees the right to refuse to work,” but explaining the steps workers should take if they believe working conditions are dangerous, the employer fails to eliminate the imminent danger, and there is not enough time to address the condition through regular enforcement channels:

  1. Ask the employer to correct the hazard or ask to be assigned other work;
  2. Tell the employer that they won’t perform the work unless and until the hazard is corrected; and
  3. Remain at the worksite until ordered to leave by the employer.

Notably, this OSHA guidance does not tell workers they can refuse to report to work or walk off the job. They can refuse to do what they believe is hazardous work, but they must stay at work until or unless asked to leave by the employer. This guidance does not address the issue presented by COVID-19: what are an employer’s obligations and an employee’s rights when OSHA’s direction to “remain at the worksite” is at the root of an employee’s claim of a dangerous condition? Put another way, do OSHA rules require the equivalent of a nuclear power plant worker remaining on the job when the employee’s complaint is that the power plant is emitting dangerous levels of radiation and to continue working risks potentially lethal exposure?

2. Cases Interpreting the OSHA Guidance and Section 11 Anti-Retaliation Rights

As of this writing there appear to be no reported cases interpreting OSHA’s anti-retaliation rules in the context of potential exposure at the workplace to a contagious illness. There are court decisions interpreting the OSHA anti-retaliation regulation in the context of other workplace risks that are instructive, but nothing where reporting to or staying at work itself risks injury.

The fundamental case involving a worker’s OSHA right to refuse to work is the US Supreme Court’s decision in Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). In Whirlpool, two employees refused to conduct maintenance tasks that previously had led to the death of a fellow employee, claiming that the risk had not been eliminated despite repeated employee complaints to management. When the employees refused to do the work the day after calling OSHA, the employer sent them home without pay and put reprimands in their files. The Secretary filed suit, alleging discrimination against the employees in violation of Section 11 of the Act, as interpreted by the OSHA anti-retaliation regulation. On appeal to the Supreme Court, the issue was whether the OSHA regulation “authorizing employee ‘self-help’ in some circumstances . . . is permissible under the Act.” 445 U.S. at 8. The Supreme Court first found that the OSHA regulation allowing workers to “avoid workplace conditions that they believe pose grave dangers to their own safety” “conforms to the fundamental objectives of the Act—to prevent occupational deaths and serious injuries” and that the regulation rationally complemented the Act’s remedial scheme. Id. at 11-12, 21.

The Court then looked at the Act’s legislative history. The Court noted that the provisions in the OSH Act were different from those in other acts protecting workers, such as the National Labor Relations Act (NLRA) and the Labor Management Relations Act (LMRA). Id. at 17, n. 29. The Court also found that Congress meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular paychecks when they absented themselves from work for reasons of safety. But the regulation here does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that in such cases the employer may not “discriminate” against the employees involved. An employer “discriminates” against an employee only when it treats that employee less favorably than it treats others similarly situated. Id. at 18-19 (emphasis added). The Court concluded that the OSHA regulation adopted to explain that it is an employee’s right to refuse to perform an assigned task because of a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no less drastic alternative is available, was a “valid exercise of [the Secretary’s] authority under the Act.” Id. at 22.

In Whirlpool, the Court found that the employees “were clearly subjected to ‘discrimination’ when [their employer] placed reprimands in their respective employment files,” but the Court left to the lower court on remand to determine if the denial of pay for time they did not work was discrimination. Id. at 19, n. 31.

Since Whirlpool, the Secretary has sought and obtained awards of back pay, reinstatement, and other relief under Section 11 of the Act and the anti-retaliation regulation. See, e.g., Perez v. Clearwater Paper Corp., 184 F. Supp. 3d 831 (D. Idaho 2016) (employer who retaliated against employee for complaining about health hazards, required to pay back pay, severance pay, emotional distress and punitive damages); Perez v. U.S. Postal Service, 76 F. Supp. 3d 1168 (W. D. Wash. 2015) (employer retaliated against employee when he helped another employee file a complaint with OSHA, required to pay lost wages from denial of promotion, travel, housing, and medical expenses, and emotional distress damages, and expunge the employee’s personnel record); see also, Secy. v. Lear Corp. Eeds and Interiors, 822 F.3d 556, 561-62 (11th Cir. 2016) (the Secretary has power under Section 11 to enjoin an employer’s state court lawsuit alleging tortious defamation by employees who raised health and safety concerns if secretary finds that the employer’s tort claims are baseless and retaliatory or preempted by federal law); Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (“an employer that retaliates against an employee because of the employer’s suspicion or belief that the employee filed an OSHA complaint has as surely committed a violation of § 11(c) as an employer that fires an employee because the employer knows that the employee filed an OSHA complaint”).

A Section 11 lawsuit brought by the Secretary is not easily demonstrated, however. As seasoned litigators know, the party who has the burden of proof generally finds it more difficult to prevail in court. Section 11 lawsuits follow the burden-shifting framework used generally in other types of lawsuits for discrimination. At all times the burden of proof remains with Secretary. The burden of going forward with the evidence only shifts to the employer if the Secretary establishes a prima facie case. See Solis v. Blue Bird Corp., 404 Fed. Appx. 412, 413 (11th Cir. 2010) (the district court properly used “the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green,” 411 U.S. 792 (1973), in a Section 11 retaliatory discharge case). For example, in Chao v. Blue Bird Corp., 2009 WL 485471 (M.D. Ga., Feb. 26, 2009), the secretary brought suit under Section 11 of the OSH Act when an employer discharged an employee after he raised safety concerns about a work assignment and demanded further training. Id. Blue Bird, 2009 WL 485471 at *2-4; see 29 CFR § 1977.9.

Applying McDonnell Douglas, the court found: “Claims alleging wrongful discharge in retaliation for exercising rights afforded under the Act are analyzed under the burden-shifting framework” under which the Secretary “must present sufficient evidence to satisfy the elements of her prima facie case.” Blue Bird at *3 (citation omitted). To establish a prima facie case, “the Secretary must show by a preponderance of the evidence that (1) [the employee] engaged in protected activity; (2) [the employer] took adverse action against [the employee]; and (3) a causal connection exists between the protected activity and the adverse action.” Id. (citation omitted). “If a prima facie case is established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. Id. If articulated [by the employer], the [Secretary] must show that the [employer’s] reason was pretextual in order to prevail.” Id. (citation omitted).

In Blue Bird, the court found that the employees’ actions were proper and protected under the Act, that the employer’s discharge and other actions violated the Act, and that the employer’s justification for its action was pretextual, and ordered the employee’s reinstatement with all prior benefits and back pay.

On January 1, 2016, OSHA’s Directorate of Whistleblower Programs, which investigates potential Section 11 claims before they are filed in court, issued an agency-wide memo: “Clarification of the Work Refusal Standard Under 29 CFR 1977.12(b)(2)” (the Work-Refusal Memo). OSHA noted that there were “five requirements for a protected work refusal:”

  1. a reasonable apprehension of death or serious injury,
  2. a good faith refusal,
  3. no reasonable alternative,
  4. insufficient time to eliminate the condition through regular statutory channels, and
  5. where possible, the employee sought and was unable to obtain a correction of the dangerous condition.

Work-Refusal Memo, p. 2. Again, this is only a DOL Memo, not a regulation or an Act.

The last page of the Work-Refusal Memo has a flowchart showing how OSHA analyzes whether an employee’s work refusal is protected under the Act. Among other points, OSHA clarifies that “[i]t is not an absolute requirement that a complainant [employee] call federal or state OSHA after being instructed to perform a dangerous task.” Id., p. 3. However, “OSHA should determine whether (1) the called federal or state OSHA and, if not; (2) whether there was a period of time during which the complainant reasonably could have contacted Federal or state OSHA but did not do so.” OSHA also takes the position that an “employee voluntary quit” after “protectable refusal to work” may be considered a constructive discharge that can trigger Section 11 liability. Id., pp. 5-6.

3. How to Minimize Risks of an OSHA Retaliation Claim During the COVID-19 Pandemic

Employees do not have unfettered rights to walk off the job or refuse to report to work, even in response to a pandemic such as we are facing presently. Furthermore, employees are not entitled to pay if they refuse to work. Employees may be protected from discriminatory action by an employer if they stop work while on the job, when they reasonably believe they will be forced to work under dangerous conditions, risking death or serious injury, and they have no other recourse. Discrimination occurs when the employer treats an employee “less favorably” than others similarly situated. Whirlpool, 445 U.S. at 19. OSHA protections are separate from Foods, Inc., 692 F.2d 1171 (8th Cir. 1982) (non-unionized employees have a protected right under the NLRA to walk off worksite after repeated exposures to ammonia fumes); see also, Hatzel & Buehler, Inc. v. Orange & Rockland Utilities, Inc., 1992 WL 391154, *5, n.10, 10-13 (D. Del. Dec. 14, 1992) (contractor cannot rely on its employees’ rights under OSHA anti-relation regulation to claim impossibility of performance of work involving asbestos exposure).

Exposure to COVID-19, while likely to bring infection is not necessarily guaranteed to be fatal. At present, the Science is still developing. Certainly, at this point it is not the same as radiation exposure. For the Secretary to bring an action against an employer under COVID-19, the Secretary would have to demonstrate that exposure to COVID-19 in the workplace presents a “real danger of death or serious injury.” See 29 CFR § 1977.12(b)(2). Nevertheless, an employer will want to take precautions to avoid being sued by the Secretary for retaliatory or discriminatory conduct if employees raise COVID-19 concerns or refuse to come to work out of fear of the disease. To protect against an OSHA Section 11 claim, employers should keep the following in mind.

First, an employer should realize that it is not allowed to take retaliatory action against an employee merely because they raise a COVID-19 safety concern and especially if the employee contacts OSHA about that concern. See 29 CFR § 1977.9 (employee’s rights to raise safety concerns and/or contact OSHA protects employee from any retaliation in response).

Second, in response to an OSHA inquiry, complaint, or inspection, the employer should demonstrate its compliance with applicable OSHA standards by showing what it is doing to protect its employees from exposure, such as requiring them to wear personal protective equipment known as “PPE” or other safety measures being taken in the workplace. See, e.g., 29 CFR § 1910.132.

Third, although OSHA acknowledges that “[t]here is no specific OSHA standard covering COVID-19,” the employer should consider its workplace conditions in light of OSHA’s “Guidance on Preparing Workplaces for COVID-19” (the OSHA Guidance), issued on March 11, 2020 (and any updates thereto). OSHA recommends steps that employers should take to protect workers at different levels of risk, using OSHA’s “hierarchy of controls” framework for addressing workplace risks (i.e., engineering controls, followed by administrative controls, safe work practices, and PPE). OSHA recognizes that for “most employers,” they can protect their employees just by implementing “basic infection prevention measures.” OSHA Guidance at 8, 20-22.

Fourth, if a worker contracts COVID-19 and has been at the worksite within at least 14 days prior, the employer should consider cleaning the affected work area. See CDC’s “Environmental Cleaning and Disinfection Recommendations”; OSHA Guidance at 9-10.

Fifth, the employer should evaluate whether it has control over worksite conditions that are the subject of the complaint and whether a change in operations or additional precautions are possible and appropriate, especially if the business is deemed “essential.” See OSHA Guidance at 11-12; 29 CFR § 1977.12(b)(1).

Sixth, the employer should consider its response to an employee’s refusal to come to work or to work as instructed, given that it may be the employer’s obligation to show that its action was not discriminatory, i.e., that the reasons for its actions, including discharge, were not discriminatory, including whether those measures are equally applied, consistent with existing company policies and procedures, and otherwise not a pretext for retaliating against an employee taking allegedly lawful action.