What manufacturing employers need to know in order to properly handle employee refusals to work.

As state and local jurisdictions have been permitting regulated returns to operations, essential and non-essential manufacturers alike have been ramping up production. However, the orders opening up business do not mean that the risks of COVID-19 infection are eliminated. The risks remain, and they vary from jurisdiction to jurisdiction, and sometimes from week to week. With much still unknown about how the virus is transmitted, employees’ comfort levels about returning to the workplace are also in flux. Some employees may refuse to come to work, citing their views that the risks are too high. Like many aspects of labor and employment law, there are few bright lines guiding employers on how best to manage this issue. However, if manufacturing employers understand and respect employee rights, they can avoid liability yet still proceed in a manner that would staff the factory sufficiently.

Understanding Employees’ Rights

Pandemic-related refusals to work typically implicate employee protections under the Occupational Safety and Health Administration (OSHA) and labor law (for both unionized and nonunionized factory employees). If a refusal arises in a situation in which OSHA or labor law deems it a protected activity, then any adverse action by the employer in response can be illegal retaliation, leading to liability for any lost pay and benefits, among other things. So, when is a refusal to work “protected”?

Workplace Safety

OSHA guidance explains that an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply:

  1. the employee “asked the employer to eliminate the danger, and the employer failed to do so”;
  2. the employee “refused to work in ‘good faith’” based on a genuine belief that “an imminent danger exists”;
  3. “[a] reasonable person would agree that there is real danger of death or serious injury”; and
  4. “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

It is not clear whether COVID-19 rises to the level of an “imminent danger.” As Secretary of Labor Eugene Scalia recently noted,

Coronavirus is a hazard in the workplace. But it is not unique to the workplace or (with the exception of certain industries, like health care) caused by work tasks themselves. This by no means lessens the need for employers to address the virus. But it means that the virus cannot be viewed in the same way as other workplace hazards.

National Labor Relations Act

The National Labor Relations Act (NLRA) applies differently to employee refusals to work depending on whether the employee is nonunionized or is subject to a labor contract and the typical “no-strike” clause. The overarching concept, pursuant to Section 7 of the NLRA, is that all nonsupervisory employees of covered employers have the right to refuse to work if they have an honest belief that conditions in the workplace are unreasonably unsafe, and they are acting with another employee (or more) or on behalf of others. Concerns based only on self-interest, perhaps unique to the individual, may not qualify as the type of “concerted” activity undertaken for the “mutual” aid and protection of the particular employee and his or her coworkers. As such, those uniquely individual concerns and actions may not be protected—thus allowing for disciplinary action or even discharge in response to a refusal to work.

Unionized employees, on the other hand, are subject to labor contracts that usually include a “no-strike” clause that reflects a waiver by the union of employees’ right to refuse to work during the term of the contract. Even these represented employees might have a protected right to refuse to work. Pursuant to Section 502 of the NLRA, a refusal to work over safety concerns is protected if the assignment involves “abnormally dangerous conditions.” Under a 1999 NLRB ruling, unionized employees must have a “good faith” belief supported by “ascertainable” and “objective evidence” that the working conditions are “abnormally dangerous” in order to be absolved of their contractual obligations to refrain from striking. Refusal to work in this context is generally protected, even if there is a no-strike clause in the relevant collective bargaining agreement.

Staffing the Facility in the Face of Refusals to Work

Planning and communication can help minimize those situations in which employees have a good faith belief of unreasonable workplace risks. Here are some tips manufacturers can consider when facing refusals to work.

  • Make sure your house is in order. Confirm and reconfirm your procedures meet or exceed guidelines published by the Centers for Disease Control and Prevention (CDC), OSHA, and any state or local authorities.
    • Ensure that at least one management person remains responsible for staying current with new guidelines.
  • Convince employees with repeated and persuasive communication that the employer has diligently complied with applicable guidelines.
    • Invite employees to raise questions, concerns, and even suggestions regarding the employer’s new safety-related practices.
  • Walk the walk by supporting and enforcing the new safety practices. Do not let things fall through the cracks. For example, make sure soap or hand sanitizer containers are never depleted, and personal protective equipment (PPE) remains readily available. Make sure supervisors consistently enforce social distancing practices. Failures by management to follow through will be argued by employees as evidence that the workplace is not safe.

If faced with an employee refusal to work, stay calm and proceed deliberately.

  • Interview the employee to determine why they refuse to work. Be sure to ask for and get all of their reasons, and all facts in support of those reasons. Document those responses.
    • Sometimes you will be able to correct misunderstandings here and avoid the problem.
  • If the employee’s refusal to work might be protected, consider a response that is less drastic than an immediate termination in order to minimize liability risk. Nonetheless, do not inadvertently facilitate the unilateral leave of absence. Consider allowing a temporary unpaid leave of absence, letting the employee know that:
    • Pay and benefits stop (this may be a continuing health insurance qualifying event under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) at which the employee would have to incur the cost of health coverage).
    • The company will inform the state unemployment compensation agency that work is available and offered, but the employee refuses it.
    • Depending on how the employee’s job is covered and potentially staffed during the employee’s absence, upon return the employee may be moved to another job or schedule depending on what is available then.

Employers that do a good job implementing and explaining their new safety practices and minimizing any unrequired benefits from employee absences may be able to better manage employee refusals to work both in terms of the number of employees and amount of time.

Bernard J Bobber Ogletree Deakins, Industry Today
Bernard J Bobber

Bernard J. (“Bud”) Bobber is a shareholder in the Milwaukee office of Ogletree Deakins, and Chairs Ogletree’s Manufacturing Industry Practice Group. https://ogletree.com/people/bernard-j-bobber/

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