Denise Merna Dadika, Anjali N.C. Downs, Nathaniel M. Glasser, and Anjana D. Patel, attorneys in the Health Care & Life Sciences and Employment, Labor & Workforce Management practices, co-authored an article in Bloomberg Health Law & Business News, titled “INSIGHT: Managing Health-Care Workers During Coronavirus.”
Following is an excerpt:
Health-care employers face unique concerns about protecting their workers and themselves during the new coronavirus pandemic, including refusals to work, concerns over employee fevers, and wages for sick employees.
Employers also must stay in compliance with regulations and maintain good communication with employees during this unprecedented time.
How Do We Manage Refusals to Work?
Employees who believe their workplace is safe are less likely to refuse to report to work. Health-care providers should consider implementing the measures recommended by the Centers for Disease Control and Prevention and Occupational Safety and Health Administration as a means of providing a safe workplace as required by OSHA’s general duty requirement.
OSHA recently issued guidance on preparing workplaces for Covid-19, as well as interim guidance for U.S. workers and employers of workers with potential occupational disclosure to Covid-19. This guidance included a specific supplement for health-care workers.
An employee who refuses to report or to perform the work requested may be protected under OSHA when the employee acts in good faith and has an objectively reasonable, supported belief that they are confronted with “a real danger of death or serious injury,” including a serious illness. The employee should be educated to first alert the employer so that corrective measures may be implemented before refusing to work.
The National Labor Relations Act may also provide protection to employees who refuse to work. The NLRA protects workers in both union and non-union settings from discipline when engaging in protected “concerted activity”—that is activity that involves more than a single employee’s concerns.
In the event an employee refuses to report to work or perform an assignment, the employer should communicate with the employee to understand the basis for the refusal and educate the employee as to the safeguards in place. If the employee continues to refuse, consult with legal counsel before disciplining or terminating the employee to avoid legal liability.
Bloomberg Law featured the article “INSIGHT: Managing Health-Care Workers During Coronavirus,” as a “Top Story” in “Freeze on Extra Seasonal Visas Leaves Employers in Limbo,” by Patricio Chile.