Can New York Employees Refuse to Work Over Fear of Covid-19 Exposure?

Amid the coronavirus outbreak, people in New York are sheltering in place and everyone but non-essential employees have been told to stay home or work from home. However, for employees whose jobs still require them to leave the house for work the fear of infection may understandably seem very real and they may wonder if they can refuse to work over concerns they may be exposed to Covid-19. This concern will become even more prevalent as the country slowly opens up.

OSHA’s Right to Refuse to Work

Under the Occupational Safety and Health Act (OSHA), Section 13(a) permits employees to refuse to work only if they believe that they are in imminent danger. This is defined as any practices or conditions in a workplace where a danger exists that may be reasonably expected to cause serious physical harm or death either immediately or before the imminent threat of serious physical harm or death can be eliminated. This includes the reasonable expectation a toxic substance or health hazard exists and an employee’s exposure to them will shorten life or substantially reduce their mental or physical efficiency.

These situations arise in very limited circumstances – requiring work with Covid-19 positive patients in a hospital without proper personal protective equipment, for example. Employers should seek legal guidance to determine if an imminent danger exists prior to deciding whether employees may be entitled to refuse to perform work. 

National Labor Relations Act (NLRA) Employee Protections

Section 7 of the NLRA grants employees in both union and non-union environments protections when they perform protected, concerted activities for mutual protections or aid. This includes situations where 2 or more employee take action together to better their work conditions or acts of an employee expressly conducted for their coworkers’ benefits. The National Labor Relations Board has given some additional guidance on its website, saying a concerted refusal to work in unsafe conditions can meet the threshold bestowing protections from discharge or discipline for employees engaging in these activities. 

New York Employment LawyerIn uncertain times, some New York employees fortunate enough to still have their jobs are finding themselves in situations where they are faced with health risks while performing their work. At the same time, employers whose businesses are open or reopening are faced with the possibility employees may refuse to work. To get guidance about when it may or may not be protected behavior for a refusal of work may occur, contact the experienced employment lawyers at MOWK Law. We know how to help employers and employee alike avoid costly legal missteps and have years of experience looking out for the best interests of people like you, so contact us today with your questions.